[Federal Register Volume 86, Number 75 (Wednesday, April 21, 2021)]
[Rules and Regulations]
[Pages 20798-21005]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-07402]



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Vol. 86

Wednesday,

No. 75

April 21, 2021

Part II





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for the Western Distinct Population Segment of the Yellow-
Billed Cuckoo; Final Rule

  Federal Register / Vol. 86, No. 75 / Wednesday, April 21, 2021 / 
Rules and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2013-0011; FF09E21000 FXES11110900000 212]
RIN 1018-BE29


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Western Distinct Population Segment of the 
Yellow-Billed Cuckoo

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the western distinct population segment of the 
yellow-billed cuckoo (western yellow-billed cuckoo) (Coccyzus 
americanus) under the Endangered Species Act. In total, approximately 
298,845 acres (120,939 hectares) are now being designated as critical 
habitat in Arizona, California, Colorado, Idaho, New Mexico, Texas, and 
Utah. This rule extends the Act's protections to critical habitat for 
this species.

DATES: This rule is effective May 21, 2021.

ADDRESSES: This final rule is available on the internet at http://www.regulations.gov, and the Sacramento Fish and Wildlife Office 
website at http://www.fws.gov/sacramento. Comments and materials we 
received, as well as supporting documentation we used or developed in 
preparing this rule, are available for public inspection at http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0011.
    The coordinates or plot points or both from which the maps are 
generated are included in the decisional record for this critical 
habitat designation and are available at http://www.regulations.gov at 
Docket No. FWS-R8-ES-2013-0011 and on the Service's website at http://www.fws.gov/sacramento.

FOR FURTHER INFORMATION CONTACT: Michael Fris, Field Supervisor, U.S. 
Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 
Cottage Way, Room W-2605, Sacramento, California 95825; or by telephone 
916-414-6600. If you use a telecommunications device for the deaf 
(TDD), call the Federal Relay Service (FRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Scope of this rule. The information presented in this final rule 
pertains only to the western distinct population segment of the yellow-
billed cuckoo (western yellow-billed cuckoo) (DPS). Any reference to 
the ``species'' or to the western yellow-billed cuckoo within this 
document only applies to the DPS and not to the yellow-billed cuckoo as 
a whole unless specifically expressed. A complete description of the 
DPS and area associated with the DPS is contained in the proposed and 
final listing rules for the western yellow-billed cuckoo published in 
the Federal Register (78 FR 61621, October 3, 2013, and 79 FR 59992, 
October 3, 2014).
    Why we need to publish a rule. Under the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.; hereafter ``Act'' or 
``ESA''), any species that is determined to be an endangered or 
threatened species requires critical habitat to be designated, to the 
maximum extent prudent and determinable. Designations and revisions of 
critical habitat can only be completed by issuing a rule.
    What this document does. This is a final rule to designate critical 
habitat for the western yellow-billed cuckoo. This final designation of 
critical habitat identifies areas that we have determined, based on the 
best scientific and commercial information available, are essential to 
the conservation of the species or otherwise essential for its 
conservation. After exclusions of areas under section 4(b)(2) of the 
Act, the final critical habitat comprises 63 units and is located in 
the States of Arizona, California, Colorado, Idaho, New Mexico, Texas, 
and Utah. The total change in area as a result of exclusions or changes 
from the revised proposed designation is a reduction of approximately 
194,820 acres (ac) (78,840 hectares (ha)). In addition, some of the 
areas removed did not contain the physical or biological features or 
meet our criteria for critical habitat for the western yellow-billed 
cuckoo and were identified based on comments or additional review. The 
total area excluded is approximately 172,490 ac (69,808 ha).
    The basis for our action. Section 4(a)(3) of the Act requires the 
Secretary of the Interior (Secretary) to designate critical habitat 
concurrent with listing to the maximum extent prudent and determinable. 
Section 3(5)(A) of the Act defines critical habitat as (i) the specific 
areas within the geographical area occupied by the species, at the time 
it is listed, on which are found those physical or biological features 
(I) essential to the conservation of the species and (II) which may 
require special management considerations or protections; and (ii) 
specific areas outside the geographical area occupied by the species at 
the time it is listed, upon a determination by the Secretary that such 
areas are essential for the conservation of the species. Section 
4(b)(2) of the Act states that the Secretary must make the designation 
on the basis of the best scientific data available and after taking 
into consideration the economic impact, the impact on national 
security, and any other relevant impacts of specifying any particular 
area as critical habitat. Section 4(b)(2) also authorizes the Secretary 
to exclude areas from the critical habitat if the benefits of excluding 
the areas outweigh the benefits of including the areas, unless 
exclusion would result in extinction of the species.
    Peer review and public comment. We sought comments from six 
independent specialists to ensure that our designation is based on 
scientifically sound data and analyses. In 2014, we obtained opinions 
from four knowledgeable individuals with scientific expertise to review 
our technical assumptions, analysis, and whether or not we had used the 
best scientific data available. These peer reviewers generally 
concurred with our methods and conclusions and provided additional 
information, clarifications, and suggestions to improve this final 
rule. Information we received from peer review is incorporated in this 
final designation of critical habitat. We also received comments from 
one of the peer reviewers on our 2020 revised proposed rule. We 
considered all comments and information received from the peer 
reviewer, species experts, and the public during the comment period for 
the 2014 proposed and the 2020 revised proposed designation of critical 
habitat.

Previous Federal Actions

    On October 3, 2013 (78 FR 61621), we published a proposed rule to 
list the western distinct population segment (DPS) of the yellow-billed 
cuckoo as threatened. On August 15, 2014 (79 FR 48547), we published a 
proposed rule to designate critical habitat for the DPS. On October 3, 
2014 (79 FR 59992), we published the final listing rule, which added 
the western yellow-billed cuckoo to the List of Endangered and 
Threatened Wildlife in title 50 of the Code of Federal Regulations at 
50 CFR 17.11(h) as a threatened species. On February 27, 2020 (85 FR 
11458), we published a revised proposed critical habitat designation 
and opened a public

[[Page 20799]]

comment period that closed on April 27, 2020. On September 16, 2020 (85 
FR 57816), we published a not-warranted 12-month finding on a petition 
to delist the western yellow-billed cuckoo. Please refer to the 
proposed and final listing and revised proposed critical habitat rules 
for the western yellow-billed cuckoo published in the Federal Register 
for a detailed description of previous Federal actions concerning this 
species.

Summary of Changes From the Revised Proposed Rule

    We reviewed the site-specific comments related to critical habitat 
for the western yellow-billed cuckoo (see Summary of Comments and 
Recommendations), completed our analysis of areas considered for 
exclusion under section 4(b)(2) of the Act, reviewed our analysis of 
the Physical or biological features (PBFs) essential to the long-term 
conservation of the western yellow-billed cuckoo, reviewed the 
application of our conservation strategy and criteria for identifying 
critical habitat across the range of the western yellow-billed cuckoo 
to refine our designation, and completed the economic analysis of the 
designation. This final rule incorporates changes to our 2020 revised 
proposed critical habitat rule based on the comments that we received, 
and have responded to in this document, and considers efforts to 
conserve the western yellow-billed cuckoo.
    As a result, our final designation of critical habitat reflects the 
following changes from the February 27, 2020, revised proposed rule (85 
FR 11458):
    (1) We revised unit areas based on comments received regarding 
areas that did or did not contain the physical or biological features 
essential to the conservation of the species.
    (2) We revised Federal, Tribal, and private land ownership 
information regarding Unit 70 (UT-1) based on information received from 
Duchesne County, Utah.
    (3) We excluded approximately 172,490 ac (69,808 ha) from entire or 
portions of Units as identified in Table 3, Areas Excluded by Critical 
Habitat Unit.
    (4) In the revised proposed rule, we misidentified the acreage of 
off-site restoration areas identified in the Lower Colorado River 
Multi-Species Conservation Program Habitat Conservation Plan (LCR MSCP 
HCP). We now acknowledge this miscalculation and as a result of the HCP 
providing conservation for the western yellow-billed cuckoo and its 
habitat, we are excluding from this designation all lands that were 
identified as proposed critical habitat within the planning area.
    (5) The U.S. Forest Service (USFS) suggested that the Tucson 
Audubon Society (MacFarland and Horst 2015) did not survey Unit 44 (AZ-
32, California Gulch). We corrected the unit description with survey 
information used to determine occupancy for this unit.
    (6) We updated the climate change information with new references 
based on comments.
    (7) We corrected a number of errors in unit length, acreage, and 
descriptions.
    (8) We clarified that Rockhouse Demonstration Site on the Salt 
River inflow to Roosevelt Lake was not included as critical habitat.
    (9) In the revised proposed rule, we failed to identify potential 
exclusions for San Carlos Apache parcels on the lower San Pedro River 
and Aravaipa Creek and for Eagle Creek on the San Carlos Apache Tribal 
lands. These Tribal lands have been excluded. We corrected ownership 
and operation of San Carlos Apache Reservoir and Coolidge Dam.

Supporting Documents

    In the revised proposed critical habitat rule, we stated that a 
draft analysis document under the National Environmental Policy Act 
(NEPA) for the designation of critical habitat was made available to 
the public for comment. We have now finalized an environmental 
assessment with a finding of no significance under NEPA. The document 
and finding of no significance is available at http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0011 and from the 
Sacramento Fish and Wildlife Office at http://www.fws.gov/sacramento. 
See Required Determinations section below for a discussion of our NEPA 
obligations for this designation.
    We also finalized our information pertaining to our economic 
analysis after considering public comment on the draft document. The 
final document (IEc 2020, entire) is available at http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0011.

Species Information

    The western yellow-billed cuckoo is a migratory bird species, 
traveling between its wintering grounds in Central and South America 
and its breeding grounds in North America (Continental United States 
and Mexico) each spring and fall often using river corridors as travel 
routes. Habitat conditions through most of the western yellow-billed 
cuckoo's range are often dynamic and may change condition or location 
within or between years depending on environmental conditions, 
vegetation growth, tree regeneration, plant maturity, stream dynamics, 
and sediment movement and deposition. The species' major food resources 
(insects) are also similarly variable in abundance and distribution. As 
a result, the western yellow-billed cuckoo's use of an area is tied to 
the area's habitat condition and food resources, which as stated, can 
be variable between and within years. This variability in resources may 
cause the western yellow-billed cuckoo to move between areas in its 
wintering or breeding grounds to take advantage of habitat conditions 
and food availability. For a thorough discussion of the western yellow-
billed cuckoo's biology and natural history, including limiting factors 
and species resource needs, please refer to the proposed and final 
rules to list this species as threatened published in the Federal 
Register on October 3, 2013 (78 FR 61621), and October 3, 2014 (79 FR 
59992), (available at http://www.regulations.gov at Docket No. FWS-R8-
ES-2013-0104), and the proposed critical habitat rule, which published 
August 15, 2014 (79 FR 48548) (available at http://www.regulations.gov 
at Docket No. FWS-R8-ES-2013-0011).

Summary of Comments and Recommendations

    We requested written comments from the public on the initial 
proposed (2014) and revised proposed (2020) designation of critical 
habitat for the western yellow-billed cuckoo during multiple comment 
periods. The first comment period opened on August 15, 2014, and closed 
on October 14, 2014 (79 FR 48548). The comment period was reopened from 
November 12, 2014, to January 12, 2015 (79 FR 67154). On December 2, 
2014, we announced a public hearing which was held in Sacramento, 
California, on December 18, 2014 (79 FR 71373). On February 27, 2020, 
we opened a comment period on the revised proposed critical habitat (85 
FR 11458). The comment period closed on April 27, 2020.
    In our 2014 proposed rule designating critical habitat, we 
contacted appropriate Federal, State, Tribal governments, and local 
agencies; scientific organizations; and other interested parties, and 
invited them to comment on the proposed critical habitat designation 
and 2014 draft economic analysis. We also held a public hearing in 
December 2014 in Sacramento, California, and received comments from 
scientific experts,

[[Page 20800]]

landowners, and other stakeholders regarding the proposed designation. 
On February 27, 2020, with the publication of the revised proposed rule 
(85 FR 11458), we again contacted all interested parties including 
appropriate Federal and State agencies, Tribal governments, scientific 
experts and organizations, and other interested parties and invited 
them to submit written comments on the revised proposal by April 27, 
2020. We stated that any comments received as a result of the 2014 
proposed rule need not be resubmitted and that they would be addressed 
in this final rule. Newspaper notices inviting general public comment 
were published in numerous locations throughout the range of the 
critical habitat designation for both the original and revised proposed 
rules.
    During the comment period on the 2014 proposed rule, we received 
nearly 1,200 written comments as well as over 87,000 form letters on 
the proposed critical habitat designation or the draft economic 
analysis (IEc 2013, entire). During the comment period on the revised 
proposed rule, we received an additional 99 comment letters and over 
6,000 form letters on the revised proposed critical habitat designation 
or the draft economic analysis (IEc 2019, entire; IEc 2020, entire). We 
also received from several parties additional requests for exclusion of 
areas that were not identified in the revised proposed rule. We 
reviewed each exclusion request and whether the requester provided 
information or a reasoned rationale to initiate an analysis or support 
an exclusion (see Policy Regarding Implementation of Section 4(b)(2) of 
the Endangered Species Act: 81 FR 7226; February 11, 2016). All 
substantive information provided during each comment period has either 
been incorporated directly into this final determination or addressed 
in our responses below.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), and our August 22, 2016, memorandum updating and 
clarifying the role of peer review actions under the Act, we solicited 
expert opinion on the 2014 proposed critical habitat from six 
knowledgeable individuals with scientific expertise that includes 
familiarity with the western yellow-billed cuckoo and its habitat, 
biological needs, and threats. We received responses from four of the 
peer reviewers. In 2020, during the public comment period, we received 
comments from one of the peer reviewers regarding our revised proposed 
rule. We addressed the 2014 and 2020 peer reviewer comments in this 
final rule as appropriate.
    We reviewed all the comments we received from the peer reviewers 
for substantive issues and new information regarding the western 
yellow-billed cuckoo and its habitat use and needs. The peer reviewers 
generally concurred with the information regarding the western yellow-
billed cuckoo and its habitat. In some cases, they provided additional 
information, clarifications, and suggestions to improve the 
designation. Our revised designation was developed in part to address 
some of the concerns and information raised by the 2014 peer reviewers. 
The reviewers also provided or corrected references we cited in the 
proposed rule. The additional details and information have been 
incorporated into this final listing rule as appropriate. Substantive 
comments we received from peer reviewers as well as Federal, State, 
Tribal, and local governments, nongovernmental organizations, and the 
public are outlined below.
    Comment 1: One peer reviewer recommended discussion of the role 
nonnative plant species other than tamarisk (salt cedar) (Tamarix spp.) 
play in supporting western yellow-billed cuckoo. The peer reviewer 
noted that particularly in western Colorado, Russian olive (Elaeagnus 
angustifolia) forms dense stands dominating the understory of the 
largest cottonwood galleries along areas identified as critical 
habitat. The peer reviewer provided information on a confirmed nest on 
July 21, 2008, in Russian olive in revised proposed Unit 69 (CO-2) 
along the North Fork of the Gunnison River near the town of Hotchkiss. 
The peer reviewer commented that the possible effects to western 
yellow-billed cuckoo and its habitat should be considered during 
widespread removal of Russian olive and the reviewer recommended rapid 
replacement with native shrubs.
    Our Response: In response to this comment, in the 2020 revised 
proposed critical habitat, we included discussion of the presence and 
use of nonnative plant species, including Russian olive, in western 
yellow-billed cuckoo habitat (85 FR 11458, at pp. 11466, 11469, 11473).
    Comment 2: One peer reviewer suggested adding additional areas 
along the Sacramento River, California, based on future plans for 
restoration of those sites.
    Our Response: We based our designation of areas by selecting 
occupied breeding habitat for the western yellow-billed cuckoo. Our 
conservation strategy and criteria for identifying occupied areas is 
supported by existing information on species' abundance and 
distribution. In our analysis, we found that existing habitat 
availability along the Sacramento River is sufficient to support a 
larger number of breeding birds. As a result, in this final rule, we do 
not include additional unoccupied areas, especially if those areas have 
not been restored to contain the habitat features necessary for the 
species.
    Comment 3: One peer reviewer suggested including areas along river 
segments to allow for natural stream processes such as bank cutting and 
deposition to occur, especially when hardened banks limit this natural 
process, thereby limiting the establishment of riparian vegetation.
    Our Response: In determining boundaries for the critical habitat 
along river segments, we evaluated aerial imagery to map those 
vegetated areas along the river segments that we determined contain the 
physical or biological features (PBFs) essential to the conservation of 
the species and which may require special management considerations or 
protection. In most cases, we included areas along rivers and streams 
that would allow for natural stream processes such as cutting and 
deposition that would allow for such meandering of the river to take 
place.

Federal Agency Comments

    Comment 4: USFS stated that the critical habitat designation in 
Unit 64 CA-2 at Lake Isabella, California, could affect recreation and 
grazing opportunities on USFS lands. The U.S. Army Corps of Engineers 
(Corps) also commented that designating areas within the floodplain 
would disrupt flood control operations and that portions of the unit 
within the floodplain of Lake Isabella under conservation easement 
should be removed or excluded.
    Our Response: As a result of the Federal agency and other public 
comments (Kern County and Kern River Watermaster) on the 2014 proposed 
designation and discussions with the Corps since the publication of the 
2020 revised proposed designation, we revised the extent of the 
critical habitat within Unit 64 at Lake Isabella to avoid those areas 
typically inundated by the lake or areas within the floodplain. 
Although the western yellow-billed cuckoo may use these areas during 
periods of drought or other times when the lake is drawn down, these 
areas are temporary and extremely variable and may not contain the 
physical or

[[Page 20801]]

biological features on a long-term basis. We also identified and 
excluded portions of the unit under conservation easement under section 
4(b)(2) of the Act. Our rationale for excluding certain portions of the 
unit is outlined below. See Exclusions, Private or Other Non-Federal 
Conservation Plans or Agreements and Partnerships, in General.
    Comment 5: The Corps requested exclusion of Unit 4 (AZ-2) and the 
portion of Unit 31 (AZ-29) for operation and maintenance of Alamo Dam 
and Lake in Arizona.
    Our Response: We identified the entire Unit 4 (AZ-2) at Alamo Lake 
and a portion of Unit 31 (AZ-29) upstream of the lake on Big Sandy 
River for possible exclusion in our proposed rule and have excluded 
these areas based on the Arizona Game and Fish Department (AGFD) Alamo 
Lake State Wildlife Area management plan. We also acknowledge the 
multi-year process underway among the Corps and partners to develop a 
long-term operation plan for Alamo Dam and Lake that benefits 
environmental resources while meeting the dam's maintenance needs 
(USACE 2020, entire). Although the original authority for the Corps' 
Alamo Dam and Lake was for flood control, the Water Resources 
Development Act of 1996 (Pub. L. 104-303) authorized the operation of 
the dam to provide fish and wildlife benefits both upstream and 
downstream of the dam as long as these actions do not reduce flood 
control and recreation benefits. The revised operations are designed to 
improve the currently degraded riparian western yellow-billed cuckoo 
and southwestern willow flycatcher habitat (Empidonax traillii extimus) 
by providing the magnitude, timing, and duration of flow that 
encourages regeneration and maintenance of riparian vegetation (USACE 
2020, pp. 14-16). Benefits are expected both upstream and downstream of 
Alamo Dam (see Exclusions, Private or Other Non-Federal Conservation 
Plans or Agreements and Partnerships, in General).
    Comment 6: The USFS reiterated that overgrazing does not occur on 
most of the 20 units in the Coronado National Forest that were proposed 
as critical habitat. The USFS requested removal of the statement 
regarding overgrazing from the final rule.
    Our Response: Our discussion of overgrazing is in reference to the 
special management and protections that may be required in areas 
identified as critical habitat. Grazing operations that are properly 
managed, such as USFS lands under management under the Coronado 
National Forest Land Management Plan and Allotment Management Plans, 
may be in compliance with grazing standards but may still result in 
reduced riparian habitat quality and quantity over time for western 
yellow-billed cuckoos.
    Comment 7: The Department of Energy (DOE) through the Western Area 
Power Administration (WAPA) and two local private energy companies 
requested information on how maintaining rights-of-way for electrical 
power transmission lines would be treated in areas of critical habitat 
and requested that these areas be excluded from the designation. The 
commenters stated that the designation would limit maintenance of the 
rights-of-way and potentially cause increased risk of wildfires, power 
outages, or injury to human life and property.
    Our Response: With respect to rights-of-way maintenance activities 
in areas of critical habitat, Federal agencies that authorize, carry 
out, or fund actions that may affect listed species or designated 
critical habitat are required to consult with us to ensure the action 
is not likely to jeopardize listed species or destroy or adversely 
modify designated critical habitat. This consultation requirement under 
section 7 of the Act is not a prohibition of Federal agency actions; 
rather, it is a means by which they may proceed in a manner that avoids 
jeopardy or adverse modification. Even in areas absent designated 
critical habitat, if the Federal agency action may affect a listed 
species, consultation is still required to ensure the action is not 
likely to jeopardize the species. Because the areas designated as 
critical habitat are occupied and consultation will be required to meet 
the jeopardy standard, the impact of the critical habitat designation 
should be minimal and administrative in nature. In some instances, we 
have worked with entities with on-going maintenance requirements such 
as in rights-of-way to develop programmatic consultations that help to 
conserve habitat while still meeting an entity's operational 
responsibilities, and we are willing to meet with DOE and WAPA to 
discuss potential programmatic consultation activities. In addition, 
existing consultation processes also allow for emergency actions for 
wildfire and other risks to human life and property; critical habitat 
would not prevent the commenters from fulfilling those obligations. 
Lastly, we note that actions of private entities for which there is no 
Federal nexus (i.e., undertaken with no Federal agency involvement) do 
not trigger any requirement for consultation.
    In regard to the commenter's request to exclude their rights-of-way 
areas from the critical habitat designation, the commenters provided 
general statements of their desire to be excluded but no information or 
reasoned rationale as described in our preamble discussion in our 
policy on exclusions (see Policy Regarding Implementation of Section 
4(b)(2) of the Endangered Species Act: 81 FR 7226; February 11, 2016) 
(Policy on Exclusions) or as described in our 2020 revised proposed 
rule (85 FR 11502). For the Service to properly evaluate an exclusion 
request, the commenter must provide information concerning how their 
rights-of-way maintenance activities would be limited or curtailed by 
the designation, and hence the need for exclusion. In addition, as 
noted above, the requirement to consult with us on Federal actions that 
may affect designated critical habitat is designed to allow actions to 
proceed while avoiding destruction or adverse modification of critical 
habitat.
    In the Policy on Exclusions, we outline the procedures we undertake 
when determining if an area should or should not be excluded. In 
determining whether or not to exclude an area, the Secretary is given a 
great deal of discretion for undertaking an exclusion analysis or 
determining to exclude an area. In our review of their request of 
exclusion, we determined that the effect of having critical habitat 
designated in their rights-of-way would be to require consultation with 
us for those Federal agency actions that may affect such designated 
critical habitat. In addition, we determined that this consultation 
requirement would not preclude these rights-of-way maintenance 
activities from occurring, and subsequently would not result in a 
potential for increased risk of wildfires, power outages, or injury to 
human life and property.
    Comment 8: The U.S. Bureau of Reclamation (Reclamation) requested 
that the full pools of Elephant Butte and Caballo Reservoirs be 
excluded from critical habitat designation based on a precedent set by 
the Rio Grande silvery minnow (Hybognathus amarus) designated critical 
habitat, a variety of commitments associated with section 7 
consultations and their Southwestern Willow Flycatcher and Yellow-
billed Cuckoo Management Plan. The full pool of Elephant Butte 
Reservoir is considered to be River Mile (RM) 62 by Reclamation.
    Our Response: The Service commends Reclamation on their decision to 
allow for the temporary habitat to develop within Elephant Butte and 
Caballo Reservoirs and other commitments identified in their 
Southwestern Willow Flycatcher and Yellow-billed Cuckoo

[[Page 20802]]

Management Plan. We have reviewed the information presented by 
Reclamation for Elephant Butte Reservoir and information on the species 
use and habitat conditions for the western yellow-billed cuckoo and 
determined that an exclusion for Elephant Butte Reservoir (Unit 37, NM-
6B) to RM 54 is appropriate for exclusion.
    We also reviewed Reclamation's request for excluding the two areas 
associated with Caballo Reservoir (Unit 39, NM-8A and NM-8B) and 
determined that exclusion of these areas is appropriate. See Exclusions 
(Federal Lands) for our description and analysis for excluding Elephant 
Butte and Caballo Reservoirs under section 4(b)(2) of the Act from the 
final designation.
    Comment 9: Reclamation is concerned that critical habitat could 
impose unnecessary burdens on water storage and delivery operations in 
Arizona for Reclamation and its partners. The areas of concern include: 
Habitat downstream of Horseshoe Dam (Unit 11, AZ-9A); the eastern part 
of Unit 17 (AZ-15) on the Lower San Pedro and Gila Rivers upstream of 
Dripping Springs Wash to San Carlos Reservoir on the Gila River because 
this reach cuts through a narrow canyon, is devoid of vegetation, and 
surveys have not detected western yellow-billed cuckoos; the 2020 
proposed Unit 11 (AZ-9B Horseshoe Dam) extension from the south end of 
Horseshoe Reservoir to below Horseshoe Dam because the additional area 
downstream to Sheep Creek is canyon-bound with narrow stringers of 
trees and does not currently support suitable breeding or foraging 
habitat and because the lower segment occurs within the Bartlett 
Reservoir operating space that precludes establishment and persistence 
of suitable nesting and foraging habitat.
    Our Response: Habitat for many species, including the western 
yellow-billed cuckoo, along rivers, dams, and reservoirs fluctuates 
over time as habitat transitions due to natural or human-induced 
succession. At any given time across the range, habitat may be 
regenerating, growing into suitability, growing out of suitability, 
desiccated from drought, or killed from scouring floods or fire. These 
processes are expected to occur over time in critical habitat. We agree 
that proposed critical habitat should not have been identified in the 
steeper and narrower portions of Unit 17 (AZ-15) on the Gila River and 
have removed these areas from the final designation. Although some 
breeding and foraging habitat exists in this upper reach, it is of 
lesser quality than habitat farther downstream. We also agree that the 
southern boundary of the additional Unit 11 (AZ-9B Horseshoe Dam) 
segment where PBFs are lacking does not constitute critical habitat. 
The southern terminus of this extension is now the same as the terminus 
of the critical habitat for the southwestern willow flycatcher. In the 
revised proposed rule, we identified portions of Unit 11 (AZ-9A and AZ-
9B) for consideration to be excluded under the Salt River Project's 
(SRP's) Horseshoe and Bartlett Reservoir HCP and excluded these areas 
from the final designation (see Private or Other Non-Federal 
Conservation Plans Related to Permits Under Section 10 of the Act).
    Comment 10: Reclamation requested a correction to our description 
of how western yellow-billed cuckoo habitat is maintained in Unit 1 
(CA/AZ-1) and Unit 2 (CA/AZ-2) as a result of the LCR MSCP. Reclamation 
points out the inaccuracy of the statement that the hydrologic 
processes needed to regenerate and maintain breeding habitat occur 
within these units but depends on river flows and flood timing. The 
majority of the western yellow-billed cuckoo breeding that occurs on 
the mainstem of the Lower Colorado River, including habitat at Palo 
Verde Ecological Preserve, Cibola Valley Conservation Area, Cibola 
National Wildlife Refuge Unit #1 Conservation Area, and the `Ahakhav 
Tribal Preserve, has been created through tree plantings and can be 
maintained only through active irrigation as the habitat is 
disconnected from the river channel on the upland side of the levees.
    Our Response: We have reviewed the information and have revised the 
information regarding Unit 1 and Unit 2 in this final rule to clarify 
that most of the western yellow-billed cuckoos breeding along the Lower 
Colorado River are breeding in revegetation sites created by the LCR 
MSCP. Because these units have been excluded (see Exclusions) from the 
final designation, we removed the Unit 1 and 2 descriptions and provide 
them in our supporting documentation (Service 2020b, entire).
    Comment 11: The U.S. Customs and Border Protection under the 
Department of Homeland Security (DHS/CBP) requested that the Roosevelt 
Reservation portion of critical habitat in Units 1, 16, 20, 21, 44, 45, 
52, and 61 along the U.S./Mexico border be considered for exclusion 
under section 4(b)(2) of the Act for national security reasons and for 
being exempt from environmental regulations (DHS 2020, entire). The 
Roosevelt Reservation is a 60-ft (18-m) wide strip of land owned by the 
Federal Government along the United States side of the U.S./Mexico 
border in California, Arizona, and New Mexico.
    Our Response: We have reviewed DHS/CBP's request and have excluded 
the 60-ft (18-m) area of the Roosevelt Reservation from the final 
designation. Please see Exclusions (Exclusions Based on Impacts on 
National Security and Homeland Security) for our analysis of the DHS/
CBP request for exclusion for border units within the Roosevelt 
Reservation.
    Comment 12: The U.S. International Boundary and Water Commission 
(IBWC), expressed concern that the designation of critical habitat 
along the Rio Grande and other areas (Units 1, 2, 37, 39, and 41) would 
hinder the implementation of the 1906 Convention with Mexico or the 
requirements to deliver water under the Rio Grande Compact. Therefore 
they requested exclusion of their lands from these units. IBWC also 
requested an exclusion of Unit 20 (AZ-18 Santa Cruz River) to ensure 
its permit requirements and operation of the Nogales International 
Wastewater Treatment Plant are not impacted.
    Our Response: Several of the areas identified by the IBWC have 
already been excluded entirely or in part from the final designation 
based on conservation and management of the areas by other entities and 
thus are not addressed further here. These areas include Unit 1 and 2 
along the lower Colorado River, portions of Unit 37 on the Rio Grande, 
Unit 39 at the Caballo Reservoir, and Unit 41 at Seldon Canyon and 
Radium Springs (see Exclusions, Private or Other Non-Federal 
Conservation Plans or Agreements and Partnerships, in General Private 
or Other Non-Federal Conservation Plans or Agreements and Partnerships, 
in General) for a full discussion of our exclusion analyses). We note 
that IBWC would still need to consult for actions which may affect the 
species under section 7 of the Act to ensure they do not jeopardize the 
species. The only area remaining within the designation is a portion of 
Unit 37 (NM-6B) at Elephant Butte Reservoir.
    With respect to the remaining area within Unit 37 (NM-6B), we have 
no information indicating that designation of these areas as critical 
habitat would prevent IBWC from implementing the treaty or meeting 
their water delivery commitments, or would otherwise disrupt water 
management actions. For example, our economic analysis did not identify 
water delivery or other water management actions as incurring 
significant costs as a result of designating these areas, nor did it 
anticipate that water operations would

[[Page 20803]]

be significantly affected. Moreover, the IBWC did not specify whether 
it was requesting exclusion based upon national-security or homeland-
security reasons, nor explain how treaty implementation would fit 
within these possible exclusions. IBWC did not provide any other 
information or a reasonably specific justification showing an 
incremental impact to national security or homeland security from 
designation, as described in our preamble discussion in our Policy on 
Exclusions (81 FR at 7231). Nor did the IBWC provide any reasoned 
explanation of how treaty implementation would be affected by a 
designation, and thus we have no basis to exclude this area based on 
treaty commitments. Additionally, our 2020 revised proposed rule 
designating critical habitat for the western yellow-billed cuckoo 
requested information on how properties for which exclusions were 
requested are managed and protected, noting that without this 
information, we could not weigh the benefits of a potential exclusion 
in comparison to inclusion (85 FR 11458, 11502 (February 27, 2020)). 
Having received no information, we have no basis to exclude the 
requested portions of Unit 37.
    In regard to the IBWC's request to exclude areas in Unit 20 due to 
potential impacts to waste water treatment facilities, we have no 
information indicating that such impacts are likely. Due to the arid 
nature of the Southwest and lack of consistent water flows, waste water 
treatment facilities often assist in maintaining river flows and may 
benefit riparian habitat (Luthy et al. 2015, entire). As a result, we 
do not anticipate significant changes, if any, for the operation of 
waste water treatment facilities due to the designation of critical 
habitat. Moreover, the IBWC again did not provide any supporting 
information, as described above according to our Policy on Exclusions 
(81 FR at 7231), or our request for information in the 2020 revised 
proposed rule designating critical habitat (85 FR at 11502). As a 
result, we could not initiate a review of information for a potential 
exclusion and did not exclude areas along the Santa Cruz River from 
Unit 20.
    Comment 13: The IBWC provided two comments regarding the units 
designated along the U.S./Mexico border. First, they concurred with the 
DHS/CBP's request for the exclusion of the 60-ft (18-m) Roosevelt 
Reservation in California, Arizona, and New Mexico, stating they 
coordinate with DHS/CBP on vegetation clearing within the 60-ft (18-m) 
Roosevelt Reservation. Second, IBWC recommended an additional exclusion 
so that the exclusion would extend to 150-ft (46-m) from the U.S./
Mexican border for national security and access reasons. IBWC deferred 
to the National Park Service (NPS) for critical habitat designated 
along the border in Texas (Unit 72, TX-1).
    Our Response: We have excluded the 60-ft (18-m) Roosevelt 
Reservation from this final designation based on DHS/CBP's request in 
support of their national-security mission (see Comment 11 and 
Exclusions, Exclusions Based on Impacts on National Security and 
Homeland Security). We are not aware of any reason why this 60-ft (18-
m) exclusion would be insufficient to provide security and access, or 
why extending the exclusion out to 150-ft (46-m) along the border with 
Mexico would be necessary for ensuring security and access. The IBWC 
provided general statements of their desire to be excluded but no such 
information or reasoned rationale that the critical habitat designation 
would impact their activities as described in our preamble discussion 
in our Policy on Exclusions (81 FR at 7231), or as requested in our 
2020 revised proposed rule (85 FR at 11502). Moreover, the IBWC did not 
provide information showing how designating areas beyond the 60-foot 
exclusion would harm national-security or homeland-security interests. 
In the preamble to the Policy on Exclusions, we made clear that a 
Federal agency's reference to national-security concerns does not in 
itself require an exclusion. Rather, the Federal agency must ``provide 
a reasonably specific justification of an incremental impact on 
national security that would result from the designation of that 
specific area as critical habitat'' (81 FR at 7231). In light of the 
absence of information on, or reasonably specific justification of, how 
designating these areas could raise national-security concerns, we do 
not consider this request to meet the initial burden described in our 
policy that the agency requesting a national security exclusion must 
provide a reasonably specific justification (81 FR at 7231). We 
reiterated this requirement to support a request for exclusion based on 
national security reasons in our 2020 revised proposed rule designating 
critical habitat for the western yellow billed cuckoo (85 FR at 11503).

State Comments

    Comment 14: The New Mexico Interstate Stream Commission requested 
that Unit 37 (NM-6A and NM-6B, Middle Rio Grande) be excluded in 
entirety based on the efforts of the Middle Rio Grande Endangered 
Species Collaborative Program (Program) and that this Program should be 
treated similarly to that of the LCR MSCP and others.
    Our Response: In our analysis for exclusions for Unit 37, we 
decided to exclude the entire NM-6A (7,238 ac (2,929 ha)) and portions 
of NM-6B (11,367 ac (4,600 ha)). Exclusion of Unit 37 (NM-6A) was based 
on Tribal management and partnerships through the Santa Ana Pueblo, the 
Santa Domingo Tribe, Cochiti Pueblo, and the San Felipe Pueblo (see 
Exclusions, Tribal Lands). Because the area identified in Unit 37, NM-
6B is part of Elephant Butte Reservoir managed by Reclamation, 
exclusion of portions of that unit were based on management of the area 
(see Comment 8 above and Exclusions, Federal Lands).
    In response to the Commission's request that the two units be 
excluded in their entirety based on the Middle Rio Grande Endangered 
Species Collaborative Program (Program), we have determined that the 
exclusion would not be appropriate for several reasons. Although we 
commend the Program for investing time, effort, and funding for 
conservation on the Middle Rio Grande, the habitat conservation efforts 
to date that have been implemented are focused on instream restoration 
for the Rio Grande silvery minnow, and conservation efforts for the 
western yellow-billed cuckoo have been mostly associated with 
surveying, monitoring, and non-habitat related efforts (MRGESCP 2003, 
entire). In identifying critical habitat for the western yellow-billed 
cuckoo, we identified those areas that meet the definition of critical 
habitat at section 3(5)(A) of the Act. Although management actions for 
one listed species may overlap other species' habitat or be mutually 
beneficial to multiple listed species, the physical and biological 
features in occupied habitat for yellow-billed cuckoo differ from the 
physical and biological features identified for the Rio Grande silvery 
minnow. We reviewed the habitat restoration efforts conducted by the 
Middle Rio Grande Endangered Fish Recovery Program and found that the 
vast majority of habitat management actions were focused on instream 
water management and fish habitat and not western yellow-billed cuckoo 
habitat. Instream habitats do not contain the physical or biological 
features essential to the conservation of the western yellow-billed 
cuckoo and therefore are not considered critical habitat. As a result, 
excluding these areas based on management for listed fish species does 
not meet our criteria for exclusion.

[[Page 20804]]

    Comment 15: We received comments from the Arizona Game and Fish 
Department (AGFD) on the proposed and revised proposed rule. In 2014, 
the AGFD suggested removing areas from the proposal based on the areas 
being in poor condition or not supporting breeding western yellow-
billed cuckoos. In 2020, the AGFD expressed that the revised proposed 
rule was inconsistent, did not clearly define essential habitat, 
incorrectly identified western yellow-billed cuckoos as a habitat 
generalist, inappropriately included migration and stop-over habitat 
that inflates areas needed, did not provide a location where separation 
of rangewide breeding habitat and southwest breeding occurs, and places 
regulatory burdens on the State. AGFD also stated that the Service 
defines all habitats where the species breeds, feeds, migrates, and 
stops over as critical habitat, thus inappropriately imposing Federal 
regulatory restrictions on all landowners which will require both 
Federal and State resources to manage. AGFD commented that time would 
be more appropriately spent on other conservation programs to benefit 
listed species. AGFD claimed that the revised designation violates 16 
U.S.C. 1532 (5)(C), which states that critical habitat ``shall not 
include the entire geographical area which can be occupied by the 
threatened or endangered species'' and that the Service has arbitrarily 
chosen to propose an inappropriate designation of critical habitat, and 
ignore the true intent of the purpose of critical habitat in the 
revised proposed rule. The AGFD questioned the validity of designating 
critical habitat for the western yellow-billed cuckoo, if there is not 
a specific habitat type that can be determined as critical. The 
proposed rule described a variety of habitat types (i.e., mesquite 
bosques, tamarisk stands, xeroriparian areas, cottonwood-willow 
galleries, desert scrub and grassland drainages, etc.) as important 
breeding habitat. If these habitats are all important breeding 
habitats, as described, AGFD stated that the species should be 
considered a habitat generalist and no critical habitat should be 
designated (e.g., similar to the bald eagle). If this is not the 
situation, AGFD stated that the revised proposed rule needs to be 
rescinded and redrafted to remove habitat that is used intermittently 
or occasionally for breeding from the designation of critical habitat. 
AGFD also stated that there are several factual inconsistencies in the 
proposed rule that require the proposed rule be rescinded. These 
inconsistencies include: An over-inflation of the importance of 
tamarisk as breeding habitat; unverified breeding pair information; and 
arbitrary and unsupported estimation of pairs. The AGFD recommended 
removing unverified units and excluding certain State lands under 
conservation management and that the Service should assist the States 
with funds for monitoring western yellow-billed cuckoo populations and 
allow partners to explore additional methods to restore habitat to 
benefit the western yellow-billed cuckoo. The AGFD expressed concern 
that the economic analysis does not fully capture economic impacts to 
State agencies. The commenter noted that many State agencies receive 
Federal funds to conduct projects, including wildlife conservation 
projects. Because of that potential Federal nexus, the commenter 
suggested that State agencies could incur incremental impacts. Lastly, 
the AGFD stated that the Service should finalize its determination on 
the petition to delist the species prior to finalizing critical 
habitat.
    Our Response: Part of our reasoning for revising our 2014 proposed 
critical habitat was in response to comments from the AGFD on the 
description of the physical and biological features needed by the 
western yellow-billed cuckoo and to remove areas of degraded habitat or 
not used by the species. As a result of AGFD's and other comments and 
information received, we removed or reduced a number of areas from the 
revised proposed designation. We revised the description of the habitat 
used by the species, including a description of the geographic area 
where southwest breeding habitat PBFs are found. We are not required to 
delineate or map a specific boundary line between the identified PBFs 
as requested by the AGFD.
    The Service did not include all habitats where the species breeds, 
feeds, migrates, and stops over as critical habitat. Our designation of 
critical habitat focuses on selected areas used for breeding by the 
western yellow-billed cuckoo, and as a result purposefully does not 
include all breeding areas used by the species.
    We do not consider the western yellow-billed cuckoo to be a habitat 
generalist. As explained in our revised proposed rule, western yellow-
billed cuckoos in ephemeral drainages in the southwestern United States 
are found in drainages with sparse, patchy, or dense tree cover, high 
humidity, and increased insect availability. Our description of habitat 
and inclusion of additional PBFs for the species is due to greater 
specificity as to the types of habitat used by the western yellow-
billed cuckoo and not an abandonment or reclassification of habitat 
historically described for the species. Ephemeral drainages associated 
with monsoon events are relatively small and within a specific 
geographic area in southeastern Arizona.
    In response to AGFD's questions regarding our methodology for 
determining occupancy, we followed the Act's requirement that we 
determine occupancy based on areas that are occupied at the time of 
listing. We revised our language within the unit descriptions to more 
accurately describe occupancy status of the areas. We agree that survey 
information in Arizona identified by Corman and Magill (2000) cannot 
provide definitive occupancy or breeding information due to the survey 
methodology used in the study. We also agree that statewide protocol 
surveys would provide additional information on western yellow-billed 
cuckoo distribution and breeding. We used numerous sources to make our 
determination of occupancy and breeding status for the areas identified 
as critical habitat; we determined that these sources viewed in 
combination constitute the best scientific and commercial information 
available.
    Under the Act, we are required to designate critical habitat as 
long as we find that the designation is prudent and determinable as we 
did for the western yellow-billed cuckoo. Given that the western 
yellow-billed cuckoo in Arizona occupies a variety of riparian habitats 
and its range overlaps with several other listed species, designating 
critical habitat would potentially provide additional funding through 
section 6 of the Act and support the State's other conservation 
programs.
    Tamarisk can provide habitat for the western yellow-billed cuckoo, 
especially in areas where altered river flows have caused the native 
vegetation to become degraded. We compiled the currently known 
information for western yellow-billed cuckoo's use of tamarisk and 
included information in the rule. Western yellow-billed cuckoos breed 
in tamarisk, especially if mixed with other native habitat.
    Regarding economic costs to State agencies, exhibit 3 of the 
economic analysis presents the unit incremental administrative costs of 
section 7 consultation used in the economic analysis. The total unit 
cost presented in that exhibit includes costs to the Service, other 
Federal agencies, and third parties. State agencies receiving Federal 
funds to conduct projects would be considered third parties in 
consultation and thus are represented in the cost estimates produced by 
the economic analysis. The analysis estimates that the incremental 
costs

[[Page 20805]]

incurred by third parties during the consultation process would range 
from $510 to $880 per consultation. In addition, the analysis forecasts 
the likely number of section 7 consultations based on consultations 
that have occurred since the listing of the western yellow-billed 
cuckoo in 2014, which have included third parties, such as State 
agencies. Thus, State agency consultation activity is captured in both 
the projection of the number of consultations and the unit cost of 
these consultations.
    We completed our status review and published our not warranted 12-
month finding in the Federal Register on September 16, 2020 (85 FR 
57816). We are under a court-ordered deadline to have a final 
designation submitted to the Federal Register by February 5, 2021.
    AGFD recommended exclusion of some AGFD properties under HCPs or 
conservation management. In our evaluation of areas to be excluded from 
the final designation, we identified the Upper Verde Wildlife Area, the 
Alamo Lake Wildlife Area, and State lands covered under the LCR MSCP 
(see Exclusions).
    Comment 16: The California Department of Fish and Wildlife (CDFW) 
provided additional observation information for the Sacramento Valley 
(Butte Creek) and for areas adjacent to the Owens River in California 
(Hogback Creek and Baker Creek) and requested additional areas be 
considered as critical habitat.
    Our Response: In determining those areas we consider essential to 
the conservation of the species as critical habitat, we developed a 
conservation strategy for the western yellow-billed cuckoo that focuses 
on core areas where the western yellow-billed cuckoo breeds 
consistently in relatively high numbers or is breeding in areas which 
are unique. Although the western yellow-billed cuckoo may be found in 
additional areas throughout its range, not all areas meet our 
definition of essential as outlined in our conservation strategy. Of 
the three sites requested by the CDFW to include, only the Butte Creek 
site has shown to include sufficient numbers of presumably breeding 
western yellow-billed cuckoos, with the Hogback and Baker Creek sites 
showing few individuals with only intermittent use. We did not consider 
the Butte Creek site to meet our designation criteria because the area 
is not part of the core breeding area. Another nearby site that has 
been more consistently occupied (Unit 63, CA-1, Sacramento River) and 
has already been identified as critical habitat meets our conservation 
goals for this geographic area.
    Comment 17: The California Department of Water Resources (DWR) 
stated that the designation in Unit 63 (CA-1) along the Sacramento 
River would cause conflicts with flood management requirements under 
the Central Valley Flood Protection Act of 2008 (CVFPA). The DWR stated 
that they have developed the Central Valley Flood Protection Plan 
(CVFPP) to comply with the CVFPA to improve public safety, 
environmental stewardship, and long-term economic stability in its 
management of this critical water resource infrastructure. The DWR 
requested exclusion of the area based on public safety, economic 
concerns, and existing management.
    Our Response: We fully support the DWR's mission of water resource 
management and stream flows and emergency actions necessary to protect 
the public. As described above, both our Policy on Exclusions and our 
revised proposed rule indicated that entities requesting exclusion must 
provide a reasoned rationale in support of the exclusion in order for 
the Service to conduct a full exclusion analysis. Here, DWR provided 
general statements of their desire to be excluded but did not provide 
information or a reasoned rationale on the impact of the designation to 
its activities for us to initiate an analysis or support an exclusion. 
As a result, we have determined that the designation of critical 
habitat would not disrupt their activities for flood management or 
water delivery because the habitat along the Sacramento River is in 
areas of natural stream conditions without flood control or water 
delivery structures managed by the DWR.
    Comment 18: The California Central Valley Flood Protection Board 
(CVFPB), along with numerous other local water agencies, expressed 
concern that flood control infrastructure and facilities were within 
the critical habitat boundary and that the designation would limit the 
agencies' ability to operate and maintain as well as improve and alter 
these flood control facilities. The CVFPB identified flood protection 
features such as levees, weirs, bypasses, water control gates, bridges, 
pipelines, conduits, irrigation pumps, buildings, structures, and 
underground and overhead utilities as being those types of flood 
control features of particular concern.
    Our Response: Critical habitat is defined by the existence of 
specific physical or biological features for a species that are 
essential to the conservation of the species and which may require 
special management considerations or protection. The facilities and 
features described by the CVFPB do not contain the physical or 
biological features essential to the conservation of the western 
yellow-billed cuckoo and thus are not critical habitat. In our 
description of the physical or biological features, we specifically 
state that critical habitat does not include humanmade structures (such 
as buildings, aqueducts, runways, roads, bridges, and other paved or 
hardened areas as a result of development) and the land on which they 
are located existing within the legal boundaries of the critical 
habitat units designated for the species on the effective date of this 
rule. Due to the scale on which the critical habitat boundaries are 
developed, some areas within the units' legal boundaries may not 
contain the physical or biological features and therefore are not 
considered critical habitat.
    Comment 19: Colorado Department of Natural Resources, Colorado 
Riverfront Commission, Town of Palisade, Delta County Commissioners, 
Montrose Board of County Commissioners, City of Montrose, Gunnison 
County, Grand Valley Water Users Association/Orchard Mesa Irrigation 
District/Ute Water Conservancy District, Associated Governments of 
Northwest Colorado, and Club 20 asserted that designating critical 
habitat in Colorado is not appropriate due to being on the fringe of 
the DPS' range. They stated that areas where western yellow-billed 
cuckoo are routinely detected are limited and most detections are 
sporadic, representing single or very small numbers of individuals with 
limited documentation of recent breeding in western Colorado; 
therefore, these units will not make a significant contribution towards 
conservation of the species.
    Our Response: Although limited breeding is known to occur in 
Colorado, western yellow-billed cuckoo consistently use the areas 
identified in Units 68 and 69 (CO-1 and CO-2). These areas fall into 
category 3 of our conservation strategy as they are large river systems 
outside of the Southwest that occur in different ecological settings 
that are consistently being used as breeding areas, thus contributing 
to the ecological representation and redundancy of the species. 
Maintaining breeding areas throughout the range of the species allows 
year-to-year movements to take advantage of any spatial and temporal 
changes in habitat resources and food abundance. These areas are 
occupied and contain the PBFs essential to the conservation of the 
species and which may require special management.

[[Page 20806]]

    Comment 20: The Colorado Department of Natural Resources, Mesa 
County Commissioners, Grand Valley Water Users Association/Orchard Mesa 
Irrigation District/Ute Water Conservancy District, and Club 20 
strongly concur with the proposed exclusion of the Walter Walker State 
Wildlife Area (SWA), Colorado River Wildlife Management Area, and James 
M. Robb State Park from critical habitat. They additionally request 
exclusion of the Leatha Jean Stassen SWA (near the Walter Walker SWA) 
and Tilman Bishop SWA on eastern edge of Unit 68.
    Our Response: Based on our consideration of proposed exclusions and 
land management information received from Colorado Parks and Wildlife 
and Colorado Department of Natural Resources, we found that the James 
M. Robb Colorado River Sate Park (CRSP), and the Leatha Jean Stassen, 
Walter Walker, and Tilman Bishop SWAs are all managed in ways that 
promote cottonwood and willow growth while minimizing nonnative plants 
and noxious weeds, beneficial to western yellow-billed cuckoo. 
Additionally, the exclusion of these areas is likely to be beneficial 
in maintaining a working partnership with CPW. As a result of our 
exclusion/inclusion benefits analysis, the Secretary has determined it 
appropriate to exclude these areas from the designation. See 
Exclusions, Private or Other Non-Federal Conservation Plans or 
Agreements and Partnerships, in General.
    Comment 21: Colorado Department of Natural Resources (along with 
other commenters) stated that rivers in Colorado and Utah are already 
managed to benefit western yellow-billed cuckoo due to the existing 
recovery program and designated critical habitat for listed fish 
(Colorado pikeminnow (Ptychocheilus Lucius), razorback sucker 
(Xyrauchen texanus), bonytail (Gila elegans), and humpback chub (Gila 
cypha)), such that critical habitat does not need to be designated. 
Several commenters stated that the Upper Colorado River Endangered Fish 
Recovery Program and San Juan River Basin Recovery Implementation 
Program were not cited in the proposed rule as providing protections 
for western yellow-billed cuckoo and that areas identified as critical 
habitat for the western yellow-billed cuckoo should be excluded based 
on implementation of the recovery program.
    Our Response: Areas along the San Juan River were not included in 
the 2020 revised proposed designation and are not included in this 
final designation. In identifying critical habitat for the western 
yellow-billed cuckoo, we identified those areas occupied by the species 
at the time of listing, identified the physical and biological features 
essential to conservation of the species, and then determined which of 
these features within identified areas may require special management 
considerations or protections. Although management actions for one 
listed species may overlap habitat or be mutually beneficial to 
multiple listed species, we identified the specific physical and 
biological features and geographic locations for yellow-billed cuckoo 
for this designation. The physical and biological features and occupied 
habitat for yellow-billed cuckoo differ from the physical and 
biological features identified for the four listed fish. We reviewed 
the habitat restoration efforts conducted by the Upper Colorado River 
Endangered Fish Recovery Program and found that the vast majority of 
habitat management actions were focused on instream water management 
and fish habitat and not western yellow-billed cuckoo habitat. As a 
result, excluding these areas based on management for listed fish 
species does not meet our criteria for exclusion.
    Comment 22: Colorado Department of Natural Resources requested 
further consideration of Colorado conservation efforts that focus on 
private lands, stating that critical habitat designation may reduce 
landowner's willingness to work voluntarily to benefit a species. The 
Department provided a list of conservation projects that have been 
implemented in partnership by numerous Federal and private entities 
that have helped to conserve western yellow-billed cuckoo and its 
habitat.
    Our Response: The list of wetland and riparian habitat projects 
from Partners for Fish and Wildlife, Natural Resources Conservation 
Service (NRCS) and other local environmental groups and private 
landowners shows eight projects since the listing of western yellow-
billed cuckoo, two of which are in Mesa County, Colorado. Because the 
programs have been working in partnership and implementing and 
coordinating such conservation efforts that are partly coordinated by 
the Service and NRCS, we do not expect private landowner participation 
in future conservation efforts will be curtailed as a result of 
designating critical habitat. As shown by the implementation of the 
various projects, the program has been successful in getting private 
and non-Federal partners to conserve sensitive species and their 
habitat.
    Comment 23: The Colorado Department of Natural Resources and Club 
20 recommend exclusions of critical habitat Unit 37 (NM-6B) because the 
area has already been analyzed for effects to yellow-billed cuckoo in a 
2016 biological opinion for Reclamation operations at Elephant Butte 
Reservoir, New Mexico. Additionally, an existing management plan (2012) 
is working effectively. These commenters also recommended exclusion of 
critical habitat Unit 39 (NM-8A and NM-8B) and that Reclamation extends 
their 2012 management plan to cover this area.
    Our Response: The proposed critical habitat within Unit 37, NM-6B 
(Elephant Butte Reservoir) will be excluded from critical habitat due 
to Reclamation's management plan to benefit western yellow-billed 
cuckoo. Tribal lands within Unit 37 (NM-6A) will also be excluded due 
to Tribal management for western yellow-billed cuckoo and existing 
partnerships with the Service. We are also excluding Unit 39 from 
critical habitat due to existing management. See Exclusions (Federal 
Lands and Tribal lands).
    Comment 24: The State of Idaho's Office of Species Conservation 
(OSC) (and other private water users) commented in 2014 and again in 
2020. The commenters provided modifications and corrections to the 
acreages identified in the proposed rule. They stated that protections 
afforded the western yellow-billed cuckoo as a threatened species and 
other current on-the-ground measures render the critical habitat 
designation unnecessary; areas in Idaho are not essential to the 
conservation of the species; the Service's current information on the 
status and occupancy of western yellow-billed cuckoo in Idaho is 
severely lacking; and a recovery plan should be developed before 
critical habitat is determined. They further stated that they have 
concerns that the designation would change water management, 
agricultural, and irrigation activities along the Snake River or its 
tributaries and that the American Falls Dam and Reservoir's operations 
and associated transmission lines, humanmade structures and rights-of-
way would be affected by the designation. The commenters stated that 
special management is not necessary as measures are already in place 
and that it is essential to preserve the 2004 Snake River Agreement.
    The OSC stated that the Service should leverage existing 
collaborative efforts and implement landscape-scale partnerships and 
incentivize ecologically-based cooperative water management practices 
to conserve riparian and western yellow-billed cuckoo habitats while 
providing

[[Page 20807]]

balanced management of agricultural irrigation, managed aquifer 
recharge, municipal uses, and flood control. The OSC commented that if 
areas are designated, the Service should expand the boundaries of the 
critical habitat to correspond to Federal lands and only include non-
Federal lands with landowner discretion.
    Our Response: We have revised the final rule to reflect information 
provided by the OSC regarding acreages and land ownership. We do not 
agree with the commenters' assessment that areas in Idaho are not 
essential to the conservation of the species and should not be 
designated as critical habitat. We developed a conservation strategy to 
assist in determining areas essential to the conservation of the 
species and determined that the areas in Idaho are occupied, contain 
the PBFs essential to the conservation of the species, meet the goals 
of the conservation strategy, and follow our criteria for designation. 
These areas in Idaho fall into category 3 of our conservation strategy 
as they are large river systems outside of the Southwest that occur in 
different ecological settings that are consistently being used as 
breeding areas, thus contributing to the ecological representation and 
redundancy of the species. Maintaining breeding areas throughout the 
range of the species allows year-to-year movements to take advantage of 
any spatial and temporal changes in habitat resources and food 
abundance. We based our occupancy and use of the areas in Idaho on 
State natural heritage data and published articles and survey reports 
including Reynolds and Hinckley (2005, entire) and Idaho Department of 
Fish and Game (2013-2014, entire), as the best available data that have 
documented consistent use of the areas designated as critical habitat 
in Idaho. In the proposed and this final rule we have defined our 
position and consideration of occupancy (see Selection Criteria and 
Methodology Used to Determine Critical Habitat).
    The designation of critical habitat requires Federal agencies to 
consult with the Service on activities they conduct, permit, or fund. 
Because the areas being designated are occupied, the Federal agencies 
managing water storage and delivery infrastructures already must ensure 
that their operations do not jeopardize western yellow-billed cuckoo 
due to the threatened status of the species. Our economic analysis did 
not identify significant additional costs associated with the 
designation of critical habitat as the measures that may be required 
would likely be the same as those necessary under the jeopardy analysis 
other than administrative analysis of any adverse modification review 
for the agencies' actions.
    Collaborative multi-stakeholder cooperative partnerships can be 
important to long-term conservation of sensitive species and their 
habitats while still allowing for the interests of stakeholders and 
needs of the public to continue. However, we are required to designate 
critical habitat for threatened and endangered species where we find 
the designation to be both prudent and determinable as is the case with 
the western yellow-billed cuckoo. In our development of critical 
habitat, we consider designating those areas with the PBFs essential to 
the conservation of the species and not based on land ownership, unless 
limiting the designation to just Federal lands provides for the 
conservation of the species. In our proposed rule, we solicited the 
public for information regarding potential exclusion of areas based on 
management plans or other conservation efforts including partnerships 
and we engaged with our partners regarding excluding private lands 
within the units identified in Idaho. We received a request to only 
include private lands with landowner consent from OSC; however, we 
received no information from private landowners to exclude their 
specific lands in Idaho.
    We do not agree that specific areas and essential features within 
critical habitat do not require special management considerations or 
protection because adequate protections are already in place. In Center 
for Biological Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 
2003), the court held that the Act does not direct us to designate 
critical habitat only in those areas where ``additional'' special 
management considerations or protection is needed. If any area provides 
the physical or biological features essential to the conservation of 
the species, even if that area is already well managed or protected, 
that area still qualifies as critical habitat under the statutory 
definition if special management is needed. The final rule explicitly 
states that manmade features such as irrigation structures and 
facilities are excluded from the designated critical habitat. However, 
rights-of-way are agreements that impose a status on the use of lands 
rather than describing the condition of the land as human-made 
structures. As such, rights-of-way are not excluded from designated 
critical habitat.
    Comment 25: The New Mexico Department of Agriculture, Middle Rio 
Grande Conservancy District, New Mexico Interstate Steam Commission, 
and the Rio Grande Compact Commission had comments on the revised 
proposed Unit 37 (NM-6A and NM-6B). They stated that in many cases the 
designation would not produce any additional benefits for the western 
yellow-billed cuckoo than already resulting from issuance and 
implementation of the Service's 2016 biological opinion (Service 2016a, 
entire) for water operations and river maintenance issued to 
Reclamation. These entities have also been pursuing other conservation 
actions in the proposed area through the Middle Rio Grande Endangered 
Species Collaborative Program. They would like the Service to consider 
the exclusion of the Elephant Butte Reservoir operating pool from 
designation as critical habitat. The commenters also requested that the 
draft NEPA and draft economic analysis developed for the revised 
proposed designation be made available for review.
    Our Response: Partly as a result of the 2014 comments, we revised 
the previously identified Unit 52 (NM-8) (2014) (Unit 37 (2020)) to 
remove a segment of the river near Albuquerque, NM, as not constituting 
critical habitat where there is a significant break in the habitat for 
the western yellow-billed cuckoo. Though this area has had incidental 
detections of western yellow-billed cuckoos, breeding activity has not 
been confirmed by formal surveys since the species was listed. This 
area was removed from proposed critical habitat, which resulted in 
splitting the critical habitat into two units (NM-6A and NM-6B). We 
conducted an exclusion weighing analysis and found that the benefits of 
exclusion outweigh the benefits of inclusion and excluded the majority 
of Elephant Butte Reservoir as well as areas within Tribal lands from 
this final designation (see Comment 8 and Exclusions, Tribal Lands and 
Federal Lands). The draft economic analysis (IEc 2019 and IEc 2020 
entire) and draft NEPA analysis (Service 2019d) were posted online at 
http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0011 under 
supporting documents or on the Sacramento Fish and Wildlife Office's 
website at http://www.fws.gov/sacramento.
    Comment 26: In 2014, the New Mexico Interstate Stream Commission 
and New Mexico Department of Game and Fish (NMDGF) questioned the 
source of western yellow-billed cuckoo occupancy data for the Gila, San 
Francisco, Mimbres and San Juan Units. The New Mexico Interstate Stream 
Commission also requested additional

[[Page 20808]]

information as to how State estimates for western New Mexico were 
established. On the Rio Grande, the Commission also noted discrepancies 
in 1986 study results by Howe (1986), when compared to the limited 
survey effort completed by Reclamation from 2006-2010, and stated that 
the western yellow-billed cuckoo population is larger than estimated. 
The NMDGF also recommended removing the areas along the San Juan River 
(2014 Unit 46, NM-1) and Mimbres River (2014 Unit 49, NM-6) (now 
identified as Unit 34, NM-3A) from the designation due to low frequency 
of western yellow-billed cuckoo detections.
    Our Response: Occupancy data for New Mexico was based on a variety 
of sources. These include formal surveys conducted by permitted 
biologists, incidental detection data collected and verified by online 
data from the Cornell Lab of Ornithology (2020), and information 
submitted to the Service from the State Heritage Program. State 
estimates for western New Mexico are based on the observations from the 
sources above. In this final critical habitat designation, we have 
updated our estimated numbers for the State, which is a larger 
population than originally estimated in 2014, after several years of 
increased survey effort. After reevaluation and prioritizing units of 
greatest conservation value, we agree that the low frequency of western 
yellow-billed cuckoo observations on the San Juan River lead us not to 
consider the area as critical habitat due to our conservation strategy 
and criteria for determining areas essential to the conservation of the 
species. The Mimbres River area was also reevaluated and had recent 
formal or incidental observations of western yellow-billed cuckoos 
within the area identified in 2014 as well as additional locations 
outside the unit. As a result, the areas we are designating along the 
Mimbres River now include the two areas identified in the revised 
proposed rule (Unit 34, NM-3A and NM-3B).
    Comment 27: The New Mexico Department of Agriculture (NMDA) 
requested that the Service clearly define what criteria it uses to 
differentiate between ``grazing'' and ``overgrazing.'' NMDA also 
requests the scientific and peer-reviewed sources of data that has led 
the Service to conclude that ``overgrazing'' may be a threat to 
potential critical habitat.
    Our Response: As stated in the 2014 final listing rule determining 
threatened status for the western yellow-billed cuckoo (79 FR 59992, 
October 3, 2014), well-controlled grazing activity can be compatible 
within riparian zones and in western yellow-billed cuckoo habitat 
depending on the measures implemented for the grazing activity. The 
amount of management depends on the sensitivity of the habitat at any 
given location and would most likely need to be managed on a site-by-
site basis. For example, a grazing regime used on Audubon California's 
Kern River Preserve in the South Fork Kern River Valley limits grazing 
to outside the growing season (October to March). This time restriction 
allows for regeneration of willows and cottonwoods and precludes the 
tree browsing and high-lining that often accompanies heavy summer 
(growing season) grazing. Given that ``grazing'' versus ``overgrazing'' 
may vary on a site-by-site basis, there is no clear definition, but 
generally, if an area with grazing activity degrades riparian habitat 
attributes and prevents long-term health and persistence of these 
systems, it is considered overgrazing.
    Comment 28: In 2014, the NMDGF stated that the Service should 
further describe vague habitat descriptions in the Physical and 
Biological Features section and within the unit descriptions 
themselves.
    Our Response: In our 2020 revised proposed rule (85 FR 11458, 
February 27, 2020) and this final rule, we further refined the PBFs for 
western yellow-billed cuckoo and information regarding habitat within 
the unit descriptions.
    Comment 29: The NMDGF requested that all State lands be excluded 
based on their State Wildlife Action Plan (Action Plan or SWAP) and the 
NMDA supports the exclusion of all lands in New Mexico from the final 
critical habitat designation. The NMDGF identified areas within the 
Bernardo WMA that do not have the PBFs and should not be considered as 
critical habitat. The NMDA stated that State lands are often involved 
in collaborative restoration projects involving funding from Federal 
agencies. Designating State lands as critical habitat could complicate 
interagency cooperation and hinder the implementation of restoration 
projects that would benefit the western yellow-billed cuckoo.
    Our Response: We re-evaluated the critical habitat boundary in the 
Bernardo WMA within Unit 37 (NM-6B) and agree with the State's 
assessment that a portion of the unit at the southernmost extent of 
Bernardo WMA does not contain the PBFs for the western yellow-billed 
cuckoo; therefore, some areas within Bernardo WMA were removed from the 
designation.
    In this final rule, we excluded State lands that have management 
measures in place to protect habitat for the western yellow-billed 
cuckoo (see Exclusions, Private or Other Non-Federal Conservation Plans 
or Agreements and Partnerships, in General). We value our partnership 
with New Mexico State agencies and appreciate the conservation efforts 
associated with the NMDGF State Wildlife Action Plan and coordination 
with the Service on endangered and threatened wildlife conservation 
measures and commitments through the consultation process. State 
Wildlife Action Plans, including the NMDGF State Wildlife Action Plan 
(NMDGF SWAP 2016, entire), are planning documents that provide a high 
level overview of the status of species and habitats within each State 
and are not a plan which specifically implements conservation measures, 
provides management direction, or ensures specific project or species 
funding. In some cases, these conservation efforts identified in State 
Wildlife Action Plans may aid in general riparian health, which in some 
cases, indirectly benefit western yellow-billed cuckoos. However, the 
NMDGF and the NMDA did not provide a reasoned explanation that the 
benefits of exclusion outweigh the benefits of inclusion in support of 
a request for exclusion. As a result, we did not conduct an exclusion 
analysis specific to New Mexico State lands. In addition, State 
agencies receiving Federal funds to conduct projects would be 
considered third parties in consultation and thus are represented in 
the cost estimates produced by the economic analysis. The economic 
analysis found that the incremental economic costs associated with 
critical habitat to third parties such as States would be minimal.

Tribal Comments

    In accordance with our requirements to coordinate with Tribes on a 
government-to-government basis, we solicited information from and met 
with members of the Fort Mojave Indian Tribe; Colorado River Indian 
Reservation; Fort Yuma Indian Reservation; Cocopah Tribe; Yavapai-
Apache Nation; Hualapai Indian Tribe; San Carlos Reservation; Navajo 
Nation; Santa Clara, Ohkay Owingeh and San Ildefonso Pueblos; Cochiti, 
Santo Domingo, San Felipe, Sandia, Santa Ana and Isleta Pueblos; 
Shoshone-Bannock, Fort Hall Reservation; the Cachil DeHe Band of Wintun 
Indians; and the Ute Tribe of the Uinta and Ouray Reservations 
regarding the designation of critical habitat for the western yellow-
billed cuckoo. The comments we received from the Tribes included 
revisions to Tribal ownership and requests to be excluded from the

[[Page 20809]]

designation based on their management and conservation of western 
yellow-billed cuckoo habitat, that the designation would infringe on 
Tribal sovereignty and directly interfere with Tribal self-government, 
and that it would have a disproportionate economic impact on Tribes.
    We have reviewed their requests and excluded all the Tribal lands 
from the final designation under section 4(b)(2) of the Act. See 
Exclusions (Tribal Lands) for those areas we excluded under section 
4(b)(2) of the Act from the final designation. Individual Tribal 
comments requesting exclusion from the final designation under Section 
4(b)(2) of the Act are addressed below in the Exclusions (Tribal Lands) 
section and are not addressed further here.
    Comment 30: The Gila River Indian Community (GRIC) and others 
expressed concern about whether critical habitat would impact water 
availability and management or prevent future water exchanges for 
Tribal communities. The GRIC was specifically concerned with the Salt 
River Reservoir systems identified in the Salt River Project (SRP) and 
if existing agreements allow for ``storage credits'' to be managed 
according to water delivery needs and existing water operations. The 
GRIC also provided comments regarding the economic impact of potential 
curtailment of water delivery should critical habitat be designated 
outside Tribal lands.
    Our Response: Because all Tribal lands have been excluded from the 
final critical habitat designation, any conservation activities on 
Tribal Lands that would be required are based on the listing of the 
western yellow-billed cuckoo. For critical habitat off Tribal lands, we 
do not anticipate water operations or water delivery to Tribes to be 
significantly impacted by the designation of critical habitat. Section 
3 of the economic analysis outlines the substantial baseline 
protections currently afforded the western yellow-billed cuckoo 
throughout the proposed designation and has determined that the impacts 
of critical habitat would be minimal. In addition, of the reservoirs 
within the SRP, we are excluding the areas identified near Roosevelt 
Lake through SRP's Roosevelt Lake HCP (2002) and areas around and 
downstream of Horseshoe Reservoir through SRP's Horseshoe and Bartlett 
Reservoirs HCP (SRP 2008, entire). Horse Mesa Dam, Mormon Flat Dam, and 
Stewart Mountain Dam are not within cuckoo critical habitat on the Salt 
River. Other areas within the SRP were not identified as critical 
habitat. Because the areas identified within the SRP area are no longer 
critical habitat, we would not expect future water delivery or 
exchanges to be impacted by the designation. See Exclusions, Private or 
Other Non-Federal Conservation Plans Related to Permits Under Section 
10 of the Act and Exclusions (Tribal Lands).
    Comment 31: In 2014, the Sandia Pueblo requested the exclusion of 
critical habitat within their lands based on the mandate established in 
Secretarial Order 3206, their history of restoration efforts, the 
Pueblo of Sandia's Bosque Management Plan, and section 4(b)(2) of the 
Act.
    Our Response: In 2020, we revised the critical habitat boundary of 
Unit 37 (NM-6B) near Albuquerque, New Mexico, which included the Sandia 
Pueblo. Because the area contained a significant break in the type of 
occupied habitat due to the area being near development and not meeting 
our criteria for designation, the area that contained Sandia Pueblo 
lands was not included in the 2020 revised proposed designation. 
Although this area has had a limited number of detections of western 
yellow-billed cuckoos, breeding activity has not been confirmed by 
formal surveys since the species has been listed. This assessment has 
been further supported by the Sandia Pueblo's historical and multi-year 
survey effort.
    Comment 32: One commenter noted that the Ute Indian Tribe relies on 
revenues from oil and gas development as the primary source of funding 
for its governmental services. This commenter stated that, if the 
listing and critical habitat designation prevent the Tribe from 
developing its oil and gas resources, the Tribe could lose $2.3 million 
per well annually.
    Our Response: All Ute Indian Tribe lands were excluded from the 
final designation. The commenter also refers to costs of listing for 
the yellow-billed cuckoo. Section 4 of the Act prohibits the 
consideration of economic impacts in decisions about whether to list a 
species as endangered or threatened. The listing decision made in 2014, 
was based solely on best scientific and commercial data available on 
the status of the species, after taking into account efforts by States 
or foreign nations to protect the species (section 4(b)(1) of the Act). 
Thus, the economic analysis does not quantify the likely economic 
effects of our previous decision to list the western yellow-billed 
cuckoo as a threatened species.
    For activities that have a Federal nexus on the Ute Reservation, 
the consultation history for impacts to the species has been minimal. 
The economic analysis estimated that the annual rate of expected 
consultations for the entire Unit 70 would be less than one per year 
(0.8) (IEc 2020, Exhibit A-2). As result of excluding the Tribal lands, 
we would expect even fewer consultations for the area.

Public Comments

    Comment 33: Several commenters stated the Service should not rely 
on the PBF of having an adequate prey base to designate critical 
habitat because the Service does not adequately address how management 
practices might affect the prey base.
    Our Response: In determining critical habitat, we are required to 
identify the physical or biological features essential to conservation 
of the species. Prey availability is an important component western 
yellow-billed cuckoos use to select areas for breeding. However, we did 
not identify and select areas as critical habitat based on this feature 
alone; in selecting areas as critical habitat we relied on our 
conservation strategy which focused on breeding areas with appropriate 
habitat structure. This PBF is designed to ensure that project 
proponents consider effects to the prey base in any considerations of 
how their actions might affect the function of the critical habitat in 
supporting western yellow-billed cuckoos. As such, we conclude that it 
is informative and appropriate to include as a PBF in the final 
designation.
    Comment 34: Multiple commenters expressed concern for designating 
critical habitat in areas where the species has not been recently 
documented and which we could not be certain were occupied.
    Our Response: We based our designation on the best scientific and 
commercial information available using specific criteria for 
determining areas to designate as critical habitat. We have determined 
that all units being designated are occupied by the western yellow-
billed cuckoo. In determining occupancy of breeding areas and critical 
habitat for the western yellow-billed cuckoo, we obtained occurrence 
information from surveys, reports, State Heritage data, published 
literature and online information (Cornell Lab of Ornithology). For the 
2014 proposed rule, we reviewed information between 1998 and 2014 to 
determine whether the area was occupied at the time of listing. For the 
2020 revised proposed rule, based on new data we received through 2017, 
we proposed additional units we consider to have been occupied at the 
time of listing using new data received through the 2017 breeding 
season. To further support designation of these

[[Page 20810]]

units, we used additional occupancy or breeding data up until the 2020 
breeding season. See Criteria Used To Identify Critical Habitat for a 
discussion of the information and criteria we used on determining 
occupancy.
    Comment 35: Multiple commenters requested exclusions for various 
publicly managed lands. One of these requests was to exclude Black 
Draw, part of San Bernardino National Wildlife Refuge in Arizona. 
Private landowners also requested exclusion for their own lands, 
claiming that they are already managing lands that maintain the 
species' habitat but did not provide information regarding their 
management or specific land ownership information.
    Our Response: For exclusion of an area from critical habitat 
designation based on management, we look to our Policy on Exclusions 
that outlines measures we consider when excluding and areas from 
critical habitat (81 FR 7226). Black Draw, a part of the San Bernardino 
National Wildlife Refuge, provides important habitat for the western 
yellow-billed cuckoo. In order for us to consider and conduct an 
exclusion analysis, stakeholders should provide information or a 
reasoned rationale to support their request. Without this information, 
we did not conduct a weighing analysis to determine whether the 
benefits of exclusion outweigh the benefits of inclusion. For those 
Federal, State, Tribal and public lands where we had such information, 
we conducted an exclusion analysis Please see the Exclusions section 
for areas we are excluding from the final designation.
    Comment 36: Some commenters stated that areas identified as 
critical habitat did not contain the physical or biological features 
(PBFs) and therefore are not essential and should not be part of the 
final designation.
    Our Response: In our revised proposed rule, we reevaluated the 
areas proposed as critical habitat to focus on areas that contain the 
PBFs and are consistently occupied during the breeding season. We used 
the best scientific or commercial information available to determine 
habitat for and use by the western yellow-billed cuckoo. During our 
process of analyzing the PBFs, care was taken to consider the areas 
chosen using as consistent an approach as possible, despite the 
differences in habitat and the timing of when areas are used by the 
species. In some instances, several areas of habitat if in near 
proximity to each other were grouped together as a single area. Within 
the boundaries of critical habitat, areas that do not contain the PBFs 
are not considered critical habitat, even if they are within the 
boundary.
    Comment 37: One commenter stated that the LCR MSCP maps in the 
revised proposed rule do not include some important revegetation sites 
occupied by western yellow-billed cuckoos. The commenter provided the 
total additional area of the revegetation sites within the LCR MSCP 
planning area.
    Our Response: The proposed rule and revised proposed rule were 
based on the most current information we had on boundaries of areas for 
the LCR MSCP and may not have included more recent revegetation sites. 
As a result of reviewing whether we should exclude the areas being 
managed under the LCR MSCP, we took into consideration the additional 
restored sites as part of our benefits of exclusion analysis. We have 
determined to exclude the entire area being managed under the LCR MSCP. 
See Exclusions, Private or Other Non-Federal Conservation Plans Related 
to Permits Under Section 10 of the Act.
    Comment 38: One commenter claims the inclusion of critical habitat 
for the western yellow-billed cuckoo in Unit 19 (AZ-17, Upper Cienega 
Creek), Unit 24 (AZ-22, Lower Cienega Creek), or Unit 58 (AZ-46, 
Gardner Canyon) will result in an economic burden for their activities. 
They also reasons the Service has already analyzed the effects of the 
Rosemont Project on the western yellow-billed cuckoo habitat in the 
project area during a section 7 consultation completed in 2016, and 
that because the habitat is already protected under the jeopardy 
standard, the area should not be included. The commenter also stated 
that the critical habitat within and in the vicinity of the Rosemont 
Project cannot be essential to the conservation of the species. Other 
commenters expressed concern about the development of Rosemont Copper 
Mine and that the critical habitat in the area is important for western 
yellow-billed cuckoos and other species.
    Our Response: As we discussed in our draft economic information in 
our revised proposed rule (IEc 2019, entire; IEc 2020, entire) and our 
Incremental Effects Memo (Service 2019c, entire), we do not expect 
significant economic impacts associated with the designation of 
critical habitat above those associated with listing of the species as 
threatened, due to the areas being occupied by the species. Our review 
of the comments and claims raised do not change our position that the 
incremental economic impacts associated with critical habitat would be 
limited to administrative costs associated with completing adverse 
modification analyses for Federal actions (activities, permitting, 
funding) occurring in critical habitat. In general, conservation 
measures resulting from the species' listing status under the Act are 
expected to sufficiently avoid potential destruction or adverse 
modification of critical habitat.
    In 2016, we issued a biological opinion to the USFS for Rosemont 
Copper's proposed activities (Service 2016b, entire). We subsequently 
received notification from the USFS that they had suspended all 
activities under the Rosemont Project Mine Plan of Operations due to 
litigation and court ruling to halt the project (Dewberry 2019, entire; 
Helminger 2019). In 2019, we suspended our 2016 biological opinion and 
its accompanying incidental take statement (Service 2019b, entire). On 
February 10, 2020, we received an adverse ruling on our biological 
opinion (Case 4:17-cv-00475-JAS Document 291). The USFS and Corps did 
not request an appeal of this decision. As a result of these court 
rulings, Rosemont's claim (James 2020, entire) that impacts to critical 
habitat have already been analyzed under the jeopardy standard is not 
correct. In addition, review of critical habitat is not reviewed under 
the jeopardy standard but rather under the different adverse 
modification standard. Should Rosemont Copper wish to resume seeking 
Federal permits for their activities, the Federal agencies would need 
to consult with the Service and obtain a new biological opinion for 
incidental take and adverse modification review.
    In reviewing areas to designate critical habitat, we used the best 
scientific and commercial information available to determine those 
areas that are occupied and contain the physical or biological features 
essential to the conservation of the species. Western yellow-billed 
cuckoo use of the area during the breeding season is well documented 
and the area meets our criteria and conservation strategy for 
designation.
    Comment 39: Permittees and others associated with the Service-
approved section 10 Pima County Multi-Species Conservation Plan (MSCP), 
requested that the critical habitat within the HCPs planning area be 
designated as critical habitat.
    The commenters expressed their confidence in the ability to deliver 
conservation benefit to the western yellow-billed cuckoo by way of the 
mitigation, management, and monitoring strategies in the MSCP. However, 
the commenters did state that large-scale Federal actions outside of 
Pima County's control could have significant negative impacts on 
species and lands under their management. The

[[Page 20811]]

commenters continued, stating that the designation of critical habitat 
would require Federal agencies to use an additional standard of review 
when conducting section 7 consultations with the Service for federally 
permitted activities (such as mines and transmission lines) not 
controlled by Pima County. The commenters stated that keeping the area 
as critical habitat would further serve to benefit the conservation of 
species and its habitat (Huckelberry 2014, entire). The commenters 
opined that maintaining the western yellow-billed cuckoo critical 
habitat on Pima County or Pima County Regional Flood Control District 
managed lands would not impact their section 10(a)(1)(B) permit or 
their partners. The commenters therefore requested that critical 
habitat for the western yellow-billed cuckoo be maintained on County- 
and District-owned and leased properties and on the Federal lands 
within Las Cienegas National Conservation Area.
    Our Response: In proposing revised critical habitat in 2020 for the 
western yellow-billed cuckoo, we identified approximately 9,191 ac 
(3,719 ha) of land within the Pima County MSCP that occurred in 
numerous proposed units. We are honoring the commenters' requests not 
to exclude these areas from the final designation.
    Comment 40: We received many comments on Unit 16 (AZ-14, Upper San 
Pedro River), which includes a portion of the San Pedro Riparian 
National Conservation Area (SPRNCA) managed by the Bureau of Land 
Management (BLM), ranging from support for inclusion, exclusion, 
exemption, or removal. One commenter provided support of inclusion in 
part because it has western yellow-billed cuckoo conservation goals 
within this unit as part of its Sonoran Desert Multi-species 
Conservation Plan (Huckelberry 2014, entire). Private individuals and 
environmental organizations also supported inclusion. Multiple 
commenters requested exclusion or removal of part or all of this Unit 
for various reasons, such as the area already having Federal 
protection, that it was not essential, and not wanting critical habitat 
on or near their private lands.
    Our Response: As noted above, consideration of possible exclusions 
from critical habitat are in the Service's discretion and generally 
follow our Policy on Exclusions (81 FR 7226). With respect to Unit 16, 
we determine that the requesters have not presented information or 
reasoned rationale that supports a conclusion that the benefits of 
exclusion outweigh the benefits of inclusion. Breeding western yellow-
billed cuckoos have long occupied the area within Unit 16. This area 
supports the largest population of breeding western yellow-billed 
cuckoos along and adjacent to a free-flowing river in Arizona and has a 
high conservation value. Areas such as this were specifically 
identified as part of our conservation strategy for designating 
critical habitat. Western yellow-billed cuckoos have been documented as 
breeding along the cottonwood-willow riparian woodland corridor and in 
the adjacent mesquite and desert scrub woodland that expands laterally 
into the broad floodplain. Threats to the physical or biological 
features in this Unit are ongoing and require constant management to 
protect from actions that affect the species and its habitat. The 
Service has engaged in many consultations for proposed actions within 
and outside of San Pedro Riparian National Conservation Area (SPRNCA) 
in the San Pedro River Basin that affect cuckoos and habitat within 
SPRNCA. Designation of critical habitat in this Unit ensures that 
effects of proposed Federal actions to western yellow-billed cuckoo 
habitat are considered and fully evaluated for potential impacts. The 
designation of critical habitat may also help increase agency and 
private land stewardship through partnerships and curtail unauthorized 
activities that degrade habitat such as trespass grazing and off-
highway vehicle incursions. See Exclusions Based on Impacts on National 
Security and Homeland Security for discussion of Fort Huachuca.
    Comment 41: Multiple commenters stated that the geography of the 
species does not warrant labeling the western yellow-billed cuckoo as a 
distinct population segment, therefore delisting is warranted, and it 
is not necessary to designate critical habitat.
    Our Response: On September 16, 2020, we published in the Federal 
Register a not warranted 12-month finding on the petition to delist the 
western yellow-billed cuckoo (85 FR 57816). In that finding, we 
reaffirmed our previous determination that the western yellow-billed 
cuckoo constitutes a valid distinct population segment. Thus, we are 
required to designate critical habitat for all threatened or endangered 
species as long as we find the designation to be prudent and 
determinable, as is the case for the western yellow-billed cuckoo. We 
further note that we are under court order to finalize critical habitat 
for the western yellow-billed cuckoo critical habitat and do not have 
the discretion not to do so.
    Comment 42: Several commenters stated that the western yellow-
billed cuckoo is a habitat generalist or the designation of desert 
scrub, grasslands, mesquite, mesquite bosques, and cottonwood galleries 
as ``critical'' is wrong.
    Our Response: The western yellow-billed cuckoo uses a variety of 
riparian and xeroriparian habitat within its range, but they are not 
habitat generalists. All the vegetation types are habitats with an 
overstory and understory component that occur in drainages. Based on 
comments regarding the PBFs in the 2014 proposed rule, we sought to 
better define the habitat used by the species. Western yellow-billed 
cuckoo breeding habitat is restricted to riparian woodlands along 
riparian drainages rangewide and, in the southwestern United States and 
northwestern Mexico, they also breed in more arid and sometimes 
narrower or patchier tree-lined drainages. In southeastern Arizona, 
they breed in tree-lined habitat in ephemeral drainages where humidity 
is higher than in other parts of the Southwest.
    Comment 43: A few commenters stated that the proposed rule does not 
provide a solid justification for why areas proposed for critical 
habitat are essential. One commenter also stated there was insufficient 
justification for why areas were removed from the 2014 proposed 
critical habitat and why areas previously considered essential were 
eliminated.
    Our Response: Revisions from the 2014 proposal are in part based on 
comments received and development of our conservation strategy for 
determining critical habitat. In our revised proposed and this final 
rule, we describe our rationale on why we consider the areas identified 
as essential to the conservation of the species. The conservation 
strategy takes into consideration numerous conservation biology 
practices and approaches for conserving sensitive species and their 
habitat. The areas identified contain the PBFs we considered essential 
to the conservation of the species under section 3(5)(A)(i) of the Act. 
In the strategy, we focused our designation on breeding areas that 
showed consistent occupancy and have records of numerous breeding pairs 
over time. Areas with limited, low, and inconsistent breeding 
information or degraded habitat were removed as not meeting the 
definition of critical habitat. For example, some areas on the Verde, 
Salt, and Gila Rivers that are no longer considered as critical habitat 
contained some or all of the PBFs, but the habitat is degraded, 
declining, and disjunct.

[[Page 20812]]

There were also no recent records (within the last 5 years) that 
confirm occupancy throughout the breeding season, although yellow-
billed cuckoos migrate through these areas. Some other drainages in 
Arizona and throughout the range were removed either because: (1) The 
PBFs no longer occur, (2) our information regarding PBFs was in error, 
(3) surveys conducted since 2014 have not confirmed occupancy during 
the breeding season, (4) surveys have not been conducted, or (5) the 
area had detections but occupancy was otherwise uncertain; these areas 
were removed from the designation as not meeting the definition of 
critical habitat.
    Comment 44: One commenter stated that the Service failed to inform 
private landowners that their property is proposed for designation.
    Our Response: We made every effort to provide the public 
notification of our proposed and revised proposed critical habitat, 
including through direct notification, publications in newspapers, and 
social media outlets. Due to the large scope of the proposed 
designation, it was not possible to individually contact each 
individual landowner within the proposed designation.
    Comment 45: Several commenters stated that there is no evidence 
that critical habitat units were occupied at the time of listing. 
Commenters disagreed that using data collected over a 20-year span is 
proof that the area is occupied habitat at the time of listing in 2014. 
Commenters also disputed that documentation of a few individuals is 
proof that the species is breeding or that the habitat they occupy is 
essential. Other commenters held the opposite point of view and found 
our parameters for occupancy to be too narrow, and recommended that the 
consideration of occupancy should be expanded temporally and spatially.
    Our Response: In development of the proposed rules and this final 
rule designating critical habitat, we used the best scientific and 
commercial information available. We have determined based on our 
analysis of the information available that western yellow-billed cuckoo 
surveys and occupancy reports conducted in many sites over multiple 
years indicate continued use. Therefore, it is reasonable to conclude 
that data collected from 1998 to the present can be used to determine 
occupancy. We acknowledge the difficulty in identifying every 
individual occupying or breeding occurrence for an area because of the 
remote nature of the sites, reclusive nature of the species, the 
variable nature of resource availability, the extent of the species 
range, and limited personnel and funding to conduct rangewide protocol 
surveys. In certain instances we used the best scientific and 
commercial information to inform our decisions and professional 
judgment on determining occupancy for an area or including or not 
including it as critical habitat. In our proposed rule and this final 
rule, we outline our rationale for determining occupancy and 
identifying areas as critical habitat. See Selection Criteria and 
Methodology Used to Determine Critical Habitat.
    Comment 46: Several commenters were concerned about water depletion 
(both surface water and groundwater) and its continued threat to 
western yellow-billed cuckoos into the future. Some were interested in 
creating more water availability and flow through a balanced approach 
to water use interests (including municipal, agricultural, 
recreational, and environmental interests) and implementing more 
habitat restoration in areas proposed for critical habitat.
    Our Response: Water availability and depletion can have a 
significant impact to western yellow-billed cuckoo and its habitat and 
were part of our reasoning for listing the DPS as threatened. We expect 
water depletion to continue due to a variety of causes including 
actions such as climate change, drought, mining effects, groundwater 
pumping, and water diversion. We will continue to consult on this issue 
as it arises as well as work with Federal, State, Tribal, and private 
landowners on species recovery actions.
    Comment 47: Several commenters pointed out potential 
inconsistencies in application of criteria for designation, in 
particular where large habitat blocks are absent or where there are 
gaps greater than 0.25 mi (0.40 km). One commenter is concerned about 
the gaps in suitable habitat and inclusion of small patches along the 
Big Sandy River. Another commenter stated that there is no evidence 
that Pinto Creek contains substantial blocks of riparian habitat.
    Our Response: Because of the dynamic aspects of western yellow-
billed cuckoo habitat as a result of potential flooding, changing river 
locations, and land uses, we used the active floodplain to identify 
where riparian habitat occurs and immediately adjacent suitable 
woodland habitat to determine the critical habitat boundaries. Blocks 
of habitat often contain openings that change over time in dynamic 
riverine systems. Suitable habitat in perennial and intermittent 
riparian systems consists of a variety of configurations that include 
small patches of woodland interspersed with openings, large expanses of 
woodland, narrow woodland, or a combination of different configurations 
within the same drainage at any given time. Riparian corridors in 
drainages, especially in the Southwest, can be very narrow or a 
patchwork of vegetated and nonvegetated areas. Naturally occurring gaps 
in habitat following flooding and scouring are part of succession in 
riparian systems. In time, trees will regenerate and fill these 
openings. Western yellow-billed cuckoos often nest and forage near the 
edges and openings that are part of the matrix of suitable habitat. We 
included breaks in habitat to combine one or more areas if we 
determined that: (1) The gap in vegetation was within minor variances 
of the 0.25-mi (0.40-km) distance; (2) the habitat on the other side of 
the gap was a continuation of similar or better suitable habitat and 
included breeding occupancy as identified above; or (3) the gap in 
vegetation was determined to be a consequence of natural stream 
dynamics essential to the continuing function of the hydrologic 
processes of the occupied areas. By providing breaks in habitat and 
combining areas, we allow for regeneration of vegetation in these 
areas, which is often more productive and provides additional food 
resources for the species and allows for appropriate habitat conditions 
for use when dispersing to other breeding locations.
    Comment 48: Several commenters claimed a need for western yellow-
billed cuckoo critical habitat to be protected from livestock grazing.
    Our Response: We consider livestock grazing, if conducted and 
managed appropriately, to be a management tool compatible with western 
yellow-billed cuckoo and its habitat depending on the location and 
intensity of the grazing operation. We evaluate effects of grazing on 
western yellow-billed cuckoos and habitat through section 7 
consultation for any proposed project with a Federal nexus. Livestock 
grazing in riparian areas can be a concern, and the Southwestern Willow 
Flycatcher Recovery Plan (Service 2002, entire) provides grazing 
guidance that is also relevant for western yellow-billed cuckoos. We 
identified overgrazing in riparian (including xeroriparian) habitat as 
an ongoing threat to western yellow-billed cuckoo habitat that may 
require special management. Well-managed, low-intensity, appropriately 
timed grazing in areas with multiple options for water access to 
livestock can be compatible with western yellow-billed cuckoos in some 
parts of the range. However, where water is limited and recruitment 
events are infrequent,

[[Page 20813]]

grazing at any level can impact riparian habitat.
    Comment 49: Several commenters indicated that the 2020 revised 
proposed critical habitat rule conflicts with the description of 
western yellow-billed cuckoo habitat in the 2014 listing rule and 2014 
proposed critical habitat rule.
    Our Response: Since the publication of the 2014 proposed critical 
habitat rule, we have learned more about western yellow-billed cuckoos 
and their habitat use through information identified in published 
research, survey efforts, and field studies. This new understanding is 
included as the best available science at the time of publishing the 
2020 revised proposed rule. New information includes the species' use 
of ephemeral drainages with relatively high humidity for breeding, in 
addition to the known use of riparian woodlands.
    Comment 50: Several commenters are concerned about the expansion of 
identified critical habitat in certain areas of Arizona, such as in the 
upper reaches of the Big Sandy River and that the additional areas 
(used as stop-over, dispersal, or breeding habitat) are not needed for 
critical habitat. They also state that the rule fails to show how many 
of these areas will require special management. Other commenters 
expressed concerns that the apparent expansion in Arizona is only due 
to increased survey effort and that Arizona is disproportionately 
represented in the 2020 revised proposed critical habitat.
    Our Response: The reduction in riparian habitat (including mesquite 
bosques) in Arizona has been well documented and western yellow-billed 
cuckoos are no longer found in areas where riparian habitat no longer 
exists. Yet, remaining habitat within Arizona remains an important 
stronghold for breeding western yellow-billed cuckoos. As part of the 
core of the DPS, habitat in Arizona needs to be conserved to enable 
western yellow-billed cuckoos to produce young that may eventually 
disperse to other parts of the DPS's range. The Big Sandy River was 
included because it contains breeding habitat as outlined in our 
conservation strategy. Although critical habitat areas may be used as 
migration corridors, dispersal habitat and stop-over sites, that is not 
why these areas were designated. These areas were identified as 
critical habitat as they are breeding areas that are used consistently 
by the western yellow-billed cuckoo and provide for population 
maintenance and growth as outlined in our conservation strategy. As 
mentioned in the rule, riparian habitat (including xeroriparian) is 
used by the western yellow-billed cuckoo; however, not all riparian 
habitat has been designated. An increase in a species' detection 
information often occurs as a result of a species being listed as a 
threatened or endangered species, due to consultation requirements 
under section 7 as well as recovery actions or State coordination 
efforts under section 6 of the Act. Additional occupancy information is 
also sometimes obtained as a result of academic research on a species. 
Since 2014, we estimate that the number of detections has not increased 
significantly and this information has not lead to widespread areas 
being found to be occupied outside those areas known since before 
listing, which identified the majority of occupancy and population 
numbers occurring in Arizona and New Mexico. The only areas considered 
to be ``new'' but most likely occupied at the time of listing are those 
occurring in the ephemeral habitats in southeastern Arizona associated 
with monsoonal events.
    Comment 51: Several commenters expressed concern about designating 
critical habitat in areas that contain the nonnative tamarisk and were 
concerned whether it provided usable habitat and whether critical 
habitat locations with tamarisk would interfere, delay, or discourage 
removing tamarisk for long-term restoration efforts. One commenter 
stated that the nonnative tamarisk plant should not be identified as a 
physical or biological feature and listed as a riparian plant species 
used by the western yellow-billed cuckoo, as it will impede removal of 
the nonnative plant species and delay or discourage future habitat 
restoration efforts.
    Our Response: As stated in our revised proposed rule (see 
Tamarisk), the nonnative tamarisk is often characterized as being poor 
habitat for wildlife. However, it can be a valuable habitat substitute 
where the hydrology of a stream or river has been altered to the extent 
that native woodland or riparian habitat can no longer exist. Western 
yellow-billed cuckoo use areas containing tamarisk for breeding and 
foraging, especially when mixed with some native vegetation. In Arizona 
and New Mexico, it can provide cover, temperature amelioration, food, 
and nesting habitat. Actions such as clearing vegetation, modifying 
physical site conditions, altering natural river processes, and 
disrupting biotic interactions have facilitated tamarisk dispersal to 
new locales, and created opportunities for its establishment. Because 
tamarisk is so widespread in existing western yellow-billed cuckoo 
habitat and used for breeding and foraging, it constitutes habitat for 
the species, and any Federal actions taken within these areas would 
most likely be subject to consultation under section 7 due to 
occupation by the listed species regardless of the area being 
designated as critical habitat. The value of tamarisk for the western 
yellow-billed cuckoo depends on geographic and site-specific 
conditions. Tamarisk can contribute to suitable western yellow-billed 
cuckoo habitat where mixed with native habitat or adjacent to native 
habitat, especially in Arizona and New Mexico. Tamarisk is the result 
of altered hydrology, and removal alone will not create a rebound in 
native, riparian habitat. However, tamarisk removal combined with 
native tree replacement may benefit western yellow-billed cuckoos where 
sufficient water is available and long-term management and funding 
ensures tree survival. Because all the areas we identified as critical 
habitat are occupied, the section 7 consultation requirements for 
protecting the listed species would still apply.
    Comment 52: A couple of commenters raised issues pertaining to 
wildfire. One expressed concerns about how critical habitat could lead 
to causing an overgrowth of vegetation and potentially leave areas more 
vulnerable to catastrophic wildfires, while the other acknowledged the 
need for critical habitat to balance the increased risk of wildfire due 
to climate change.
    Our Response: We acknowledge that wildfire risk exists within all 
habitat to varying degrees across the range of the DPS. The designation 
of critical habitat does not mean that management for reduction of 
wildfire cannot occur. In fact, the identification of critical habitat 
as an educational tool may focus such wildfire management actions to 
help conserve the habitat. We will continue to work with Federal, 
State, and Tribal governments and private landowners within the 
designation to implement appropriate wildfire management actions within 
and outside any critical habitat designation.
    Comment 53: Several commenters stated that the description of the 
revised proposed critical habitat conflicts with the breeding and 
foraging habitat description in the 2014 proposed critical habitat and 
final listing rule.
    Our Response: We have learned more about western yellow-billed 
cuckoo foraging and breeding habitat since publication of the 2014 
proposed critical habitat and final rule for listing. The revised 
proposed rule and this final rule include revised information on 
habitat features, foraging behavior, and breeding areas.

[[Page 20814]]

    Comment 54: Numerous commenters stated they have concerns with 
western yellow-billed survey information (such as interpretation, 
biases, and inconsistencies), a lack of comprehensive statewide 
surveys, and the likely existence of unsurveyed areas where western 
yellow-billed cuckoo could be found.
    Our Response: We recognize the lack of recent statewide survey 
information and that not all areas within the range of the DPS have 
been adequately surveyed. However, in development of critical habitat, 
we are required to use the best scientific and commercial information 
available to identify those areas essential to the conservation of the 
species. We used a combination of data collected using the standardized 
survey protocol (Halterman et al. 2016, entire), data from species 
specific studies, and other credible detection data. Although we cannot 
always guarantee complete accuracy in the survey information provided 
to us, as of the 2014 listing, the persons conducting protocol surveys 
are required to complete Service-approved western yellow-billed cuckoo 
survey training prior to receiving a permit under section 10 of the 
Act.
    Comment 55: Several commenters expressed that with the new 
ephemeral Southwest breeding habitat incorporated into critical 
habitat, there are areas available for western yellow-billed cuckoos 
that are not subject to threats, and that suitable habitat is now 
broader and more common, questioning the need for critical habitat.
    Our Response: Our characterization of Southwestern breeding habitat 
is to better define the physical or biological features of habitat 
throughout the range of the species. Historical descriptions of habitat 
were largely based on research in the Sacramento Valley, CA, or other 
areas known to have occupied habitat in large expanses of floodplain 
areas, which is often different ecologically than habitat in the 
Southwest as far as vegetation and environmental conditions. These 
changes were reflected in our description of the PBFs for the species. 
The changes to the description of habitat, by including a separate 
description for Southwest breeding habitat, does not mean that 
additional areas are now available and being used by the species. 
Southwest breeding habitat is threatened by many of the same activities 
as the rest of the DPS that has led to the loss of western yellow-
billed cuckoos and their habitat.
    Comment 56: One commenter claimed that habitat areas within 
existing power line corridors and rights-of-way that are required to be 
maintained under existing Federal energy laws and regulations are not 
essential to the conservation of the species because they currently do 
not, and in the future cannot, contain the primary constituent elements 
of essential features; these corridors should be identified and removed 
from the final critical habitat designation.
    Our Response: 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 the PBFs. These types of developments are not typically 
found adjacent to riparian habitat and, when they do occur, may be 
missing from or inaccurately represented in existing map sources. As a 
result, because of the large scope of this designation and the 
limitations of maps, any such developed lands, such as cement pads that 
support transmission or power poles or roads left inside critical 
habitat boundaries, are not considered critical habitat because they 
lack the necessary physical or biological features. Therefore, a 
Federal action involving these developed lands would not trigger 
section 7 consultation with respect to critical habitat or the 
prohibition of adverse modification, unless the specific action would 
affect the physical or biological features in adjacent critical 
habitat. However, Federal actions that may affect the species do 
require section 7 consultation. If lands surrounding existing 
powerlines, towers, or rights-of-way are occupied by western yellow-
billed cuckoos, Federal activities such as maintenance that may affect 
the species during the breeding season require section 7 consultation.
    Comment 57: One entity claimed that any restriction on mining to 
maintain critical habitat would have a dramatic impact on mining 
operations and that any such restrictions are attributable solely to 
the designation of critical habitat.
    Our Response: The areas currently of interest to mining activities 
located in or near critical habitat boundaries are occupied by the 
western yellow-billed cuckoo and would be subject to either section 7 
or section 10 consultation requirements of the Act due to the species 
being listed as threatened. As described in our economic analysis (IEc 
2019, entire), the majority of regulatory requirements as a result of 
any critical habitat designation would be administrative in nature and 
be conducted by the Federal agency that may have approved, permitted, 
or provided funding for the mining activities.
    Comment 58: Many commenters claimed that particular areas should 
not be designated because they believe that critical habitat will 
unnecessarily regulate the public, will overload Federal agencies with 
implementation of the designation, or is not necessary because the 
areas are already federally owned and therefore protected. 
Specifically, many landowners with water diversions, cattle ranches, 
and agricultural property, plus residents in areas dependent on 
recreation to support local economies throughout the western yellow-
billed cuckoo's range, commented that this designation would cause them 
harm economically, could limit the ability of farmers and ranchers to 
till productive farmland, could limit use of fertile grazing land, 
could restrict the utilization of critical water rights, and could 
delay projects through the regulatory process.
    Our Response: We are required to designate critical habitat for 
listed species if we find that the designation is prudent and 
determinable as we did for the western yellow-billed cuckoo. The 
designation of critical habitat applies to actions that are taken, 
permitted, or funded by Federal agencies. In our economic analysis, we 
did not find that the designation would cause a significant change in 
activities or delay or add additional regulatory processes, as the 
majority of regulation is already in place because the western yellow-
billed cuckoo is listed as a threatened species. Agricultural and 
grazing activities and water operations were not identified as facing 
significant changes to costs due to the designation.
    Comment 59: One commenter claims that the Service reversed course 
from the proposed rule and now contends that western yellow-billed 
cuckoo uses nonriparian habitats that occur along dry drainages and 
adjacent uplands. The commenter questioned the new category of 
southwestern breeding habitat and stated that, to their knowledge, this 
use of habitat and habitat description have not been previously 
recognized or described by ecologists.
    Our Response: Southwestern breeding habitat is similar to breeding 
habitat in Mexico. We identified southwestern breeding habitat to 
better identify and describe the physical or biological features 
essential to the conservation of the species and assist us in 
conducting section 7 consultations for areas within critical habitat. 
As described in the Critical Habitat section, features such as 
understory and overstory components with high humidity are considered 
important for habitat selection for breeding western yellow-billed 
cuckoos. This is especially true in ephemeral

[[Page 20815]]

tree-lined xeroriparian drainages. Western yellow-billed cuckoos have 
only recently been discovered using this habitat and studies are 
underway in southeastern Arizona to determine where western yellow-
billed cuckoos are and are not occupying habitat during the breeding 
season. Surveys to date have not found western yellow-billed cuckoos in 
ephemeral tree-lined xeroriparian drainages where high humidity is 
lacking.
    Comment 60: One commenter asserts that the addition of southwestern 
breeding habitat significantly increases the number of critical habitat 
units and total area of critical habitat in Arizona. Many of the 
Arizona critical habitat units are based on a handful of detections 
over the past two decades, raising questions about whether the habitat 
can be considered occupied and whether the areas are essential to the 
conservation of the species. The commenter states as a result the 
Service failed to conduct a thorough, systematic review of the data and 
species' needs in the development of the revised proposed rule.
    Our Response: We followed specific occupancy criteria to determine 
areas of critical habitat and developed a conservation strategy for the 
designation (see Criteria Used To Identify Critical Habitat, 
Conservation Strategy). Western yellow-billed cuckoos are found in low 
densities and some units have more occupancy data than others depending 
on survey efforts. Because western yellow-billed cuckoos are selective 
in using breeding habitat, have large home ranges, are difficult to 
detect, and occur in low densities, and surveys have occurred only in 
limited reaches of available habitat, we expect territory numbers per 
length of drainage surveyed to be small (one to four individuals or 
pairs is not uncommon). If the species is found repeatedly in one part 
of the drainage, and similar habitat occurs upstream and downstream, we 
assume other individuals may be present. Because most surveys are 
conducted by one or two surveyors per drainage, only a small length of 
drainage can be surveyed in any given year, yielding a small number of 
western yellow-billed cuckoos in a given reach. This contrasts to a 
focused wide-ranging survey such as on the Rio Grande with many 
surveyors that find many records along a longer reach.
    Comment 61: One commenter stated that many riparian woodlands in 
areas outside Arizona and New Mexico are known to support western 
yellow-billed cuckoo and were proposed as critical habitat in 2014. 
They were concerned that these areas have been dropped from the 2020 
revised proposed critical habitat. The commenter suggests that the 
Service did not provide any rationale for these changes, which appear 
to contradict efforts for species conservation. The revised proposed 
rule effectively makes Arizona the central focus for western yellow-
billed cuckoo conservation. This counters previous information that the 
western yellow-billed cuckoo is considered a riparian obligate species 
and such riparian habitat and perennial streams are limited in Arizona.
    Our Response: As described in the revised proposed rule, we 
developed a conservation strategy to identify areas for critical 
habitat. Some areas in the 2014 proposed rule were small, isolated, and 
contained single or very few records of occupancy for the breeding 
season. As a result of our conservation strategy, we focused the 
designation on areas where we could confirm large numbers of breeding 
pairs and consistent breeding activity. For the western yellow-billed 
cuckoo, this means identifying areas in Arizona and New Mexico. Arrival 
of the western yellow-billed cuckoo in the western United States occurs 
from Mexico north through Arizona and New Mexico (Cornell Lab of 
Ornithology 2020). In addition, new information indicates western 
yellow-billed cuckoos are breeding in a greater variety of riparian 
habitat in the Southwest, and as such, this knowledge was used to 
ensure we protect the breadth of this breeding habitat. Arizona has 
more currently occupied drainages and breeding locations than other 
western states and although many surveys have been conducted, only a 
small proportion of drainages have been surveyed. Therefore, ensuring 
habitat remains for the species in the core of the population is 
important for dispersal to other geographic areas with fewer western 
yellow-billed cuckoos. The core area for this species in the United 
States is primarily in Arizona and New Mexico in large river systems 
with riparian habitat, and in xeroriparian habitat influenced by 
monsoonal conditions. We considered and included new information 
acquired since listing. We did not include all occupied riparian 
habitat, but based decisions on representative habitat types and their 
distribution. In western states outside of Arizona and New Mexico, 
large river systems used for breeding by western yellow-billed cuckoos 
provide for additional redundancy and representation.
    Comment 62: One commenter stated that the Service's rationale for 
listing the western yellow-billed cuckoo in 2014 was largely based upon 
the loss of riparian woodland habitats. The addition of southwestern 
breeding habitat is not only counter to the Service's well-documented 
historical ``understanding'' of species ecology but also conflicts with 
the Service's basis for listing the species. This undermines the 
legitimacy of the species listing, and as a result, the Service is 
obliged to conduct a thorough review of the species status.
    Our Response: Loss of habitat and breeding location activity for 
the western yellow-billed cuckoo is well documented. The DPS continues 
to see population number declines throughout the Western United States 
with the only remaining strongholds for the species being in Arizona 
and New Mexico. Our description of habitat and the additional use of 
habitat in ephemeral drainages does not change our understanding of the 
status of the species. We completed a status review and determined that 
the western yellow-billed cuckoo continues to warrant listing as a 
threatened species (85 FR 57816). Therefore, we continue to be driven 
by a court-ordered deadline to complete a final designation.
    Comment 63: One commenter claims that the revised proposed rule 
presents contradictory information and suggests that the Service has 
yet to develop a coherent understanding of this species. The commenter 
suggests that there are clear gaps in the Service's understanding and 
explanation of the species' prevalence and its habitat needs. These 
gaps should be resolved before the Service proceeds with the critical 
habitat designation. The commenter's preference is for the Service to 
reevaluate this listing and proposed designation.
    Our Response: The information in this final designation is not 
contradictory. Our rationale for identifying and determining areas as 
critical habitat, our description of the PBFs essential to the 
conservation of the species, and our conservation strategy for 
determining critical habitat are consistent with each other and provide 
a strong basis for the determination. There are information gaps 
regarding western yellow-billed cuckoo occupancy and habitat use, and 
our understanding is continually evolving as we accumulate more 
information. We have designated critical habitat in accordance with the 
best scientific and commercial information available, as required by 
the Act.
    Comment 64: Two local government entities in California claim that 
the designation would have a large impact on agricultural practices and 
the local economy. One of the two commenters also stated that access to 
lands would be

[[Page 20816]]

restricted, grazing limits imposed, and trout stocking, logging, 
mining, and recreation would be impacted. The other commenter stated 
they have drafted the Butte Regional Conservation Plan to conserve 
western yellow-billed cuckoo and its habitat. Both commenters requested 
exclusion.
    Our Response: For both the 2014 proposed critical habitat and the 
2020 revised proposed critical habitat, we completed economic analyses 
to examine the incremental costs associated with the designation of 
critical habitat. The economic analyses did not identify significant 
impacts, and the two local government entities did not provide economic 
information regarding any of the activities identified. Nor did they 
provide information or a reasoned rationale supporting their requests 
for exclusion which is necessary for the Service to engage in an 
exclusion analysis. Critical habitat does not restrict private 
landowner access to their property and would need to be considered only 
if Federal agency funding, or permitting for an activity is needed. 
Because the areas are considered occupied, the majority of costs are 
not associated with the designation, but with listing of the species as 
threatened. In our mapping of critical habitat, we avoided areas 
associated with agriculture and focused on areas that contained the 
physical or biological features for the species. In some cases, due to 
the habitat being fragmented from development or agricultural 
conversion, we drew the boundary to encompass the various habitat 
patches. In such instances, some small areas not containing the 
physical or biological features are within the boundary of the 
designation. Any such areas would not be considered critical habitat 
because they do not contain the physical or biological features. The 
Butte Regional Conservation Plan is still in draft form and has not 
been approved by the Service or the State under its Natural Community 
Conservation Planning (NCCP) program.
    Comment 65: Several commenters provided their concerns relating to 
designation of critical habitat at Lake Isabella, California. The 
issues raised were concerning potential impacts to public safety for 
disruption of reservoir operations, flooding, and potential wildfire 
due to vegetation growth as well as increased economic costs for the 
local economy from loss of recreation and water use.
    Our Response: Although we would not expect a designation of 
critical habitat to impact the commenters' concerns identified above or 
increase economic cost to the local economy, we have revised our 
designation of the critical habitat within Unit 64 (CA-2) at Lake 
Isabella to avoid those areas typically inundated and within the 
floodplain of the reservoir. These areas are part of the flood control 
management and operations conducted by the Corps established under 
separate authorization. In addition, the Corps has already consulted 
with the Service on its operations of Lake Isabella for both the 
southwestern willow flycatcher and the western yellow-billed cuckoo. 
Because these areas have been removed, any activities associated with 
the operations of Lake Isabella by the Corps would not be impacted by 
the designation of critical habitat. In addition, two areas where the 
Corps obtained conservation easements are also being excluded under 
section 4(b)(2) of the Act (see Exclusions Based on Other Relevant 
Impacts).
    Comment 66: Several organizations and groups requested that Unit 63 
(CA-1) along the Sacramento River be excluded from the designation for 
these stated reasons: Increased costs to agriculture, concerns about 
flood control, National Wildlife Refuge (NWR) lands along the 
Sacramento River already protect western yellow-billed cuckoo and its 
habitat, and additional areas are not needed.
    Our Response: The commenters provided general statements of their 
request that Unit 63 be excluded but did not provide information or a 
reasoned rationale supporting their request for exclusion. In 
designating critical habitat, we avoided areas that contained developed 
or agricultural lands based on aerial imagery and land classification. 
Our economic analysis did not identify that designation of critical 
habitat would significantly impact agricultural activities above and 
beyond what may be required because of the species' listed status under 
the Act. The critical habitat designation occurs along the banks of the 
main stem of the Sacramento River. The designation of critical habitat 
would not impact normal water delivery, flood control actions, or 
stream flows required for emergency operations. In fact, such 
unregulated flows assist in mimicking natural high flow events, which 
can benefit sediment deposition and provide new vegetation growth for 
use by the western yellow-billed cuckoo. In determining the extent of 
critical habitat within a unit, we based the boundaries on areas where 
the species has had continuous or nearly continuous records of 
confirmed or presumed breeding. We delineated critical habitat 
boundaries to provide connectivity between breeding locations and 
account for the dynamic nature of habitat conditions and prey 
availability. As a result, the NWR boundaries would not account for all 
the areas essential to the conservation of the species, and by limiting 
them to the NWR boundary, the designation would not meet the needs of 
the species.
    Comment 67: One group said that portions of their land included in 
Unit 63 (CA-1) along the Sacramento River do not contain the PBFs and 
therefore are not critical habitat. They also stated that they have 
worked with the CDFW on habitat actions, and requested that portions of 
their lands be excluded.
    Our Response: We reviewed the areas identified by the commenter and 
adjusted the boundary of the unit to reflect those areas containing the 
PBFs. We also reviewed the information regarding the landowner's 
agreement with CDFW. After review, we find that the landowner's 
agreement does not meet our criteria for exclusion of plans as outlined 
in our policy for exclusion (81 FR 7226) because it does not contain 
sufficient measures to conserve the PBFs of the species' habitat or 
include measures for adaptive management that would ensure that the 
conservation measures are effective and can be modified to respond to 
new information. Therefore, we did not consider the area identified for 
exclusion.
    Comment 68: Numerous environmental organizations and several other 
local environmental groups stated that the entire proposed critical 
habitat areas should be designated without any exclusions and that 
exclusion of areas should not rely on southwestern willow flycatcher 
management plans or its critical habitat for conservation of the 
western yellow-billed cuckoo. They also provided information about 
adding additional areas and expanding proposed areas to be sure to 
include connectivity and stop over areas as well as migratory routes up 
to and including entire river corridors.
    Our Response: Our designation of critical habitat for the western 
yellow-billed cuckoo was developed based on a specific conservation 
strategy to assist in recovery of the species (see Criteria Used To 
Identify Critical Habitat (Conservation Strategy)). Based on our 
conservation strategy, we have concluded that the areas identified as 
proposed critical habitat and now being designated are sufficient in 
meeting our critical habitat designation requirements under the Act. 
The conservation strategy provides for many of the measures identified 
by the commenters. While we agree with the commenters that additional 
areas outside the current designation are important and would

[[Page 20817]]

contribute to recovery, the designation of critical habitat is not 
intended to identify all areas important for a species, but just those 
considered essential. The Secretary has broad discretion in determining 
if areas are appropriate for exclusion under section 4(b)(2) of the 
Act. Our evaluation for determining if an exclusion is appropriate 
includes a detailed analysis and balancing on whether the benefits of 
excluding outweigh the benefits of including an area as critical 
habitat as long as the exclusion does not lead to an extinction of the 
species. The exclusions we have identified include implementation of 
HCPs, other management plans, conservation agreements, or conservation 
easements that protect or implement specific conservation measures for 
the western yellow-billed cuckoo or its habitat (see Exclusions). As a 
result, we determine that excluding these areas under section 4(b)(2) 
of the Act is appropriate.
    Comment 69: One commenter claimed that the Service ignored, 
withheld, hid, or discounted information and as a result did not meet 
the best scientific or commercial information standard under the Act in 
making its determination of critical habitat. The commenter further 
stated that the western yellow-billed cuckoo only rarely uses habitat 
in the western DPS on a migratory and seasonal basis, which therefore 
inhibits the Service's ability to delineate habitat that contains the 
physical and biological features to justify the designation of critical 
habitat. As a result, the designation of critical habitat for the 
western yellow-billed cuckoo would be not prudent or determinable. 
Lastly the commenter stated that existing regulatory mechanisms are 
sufficient to protect habitat and the designation of critical habitat 
is not necessary and would contribute to an already heavy regulatory 
burden for the industry.
    Our Response: In development of the proposed, revised, and this 
final rule designating critical habitat, we used the best scientific 
and commercial information available. We find the commenter's 
statements regarding our ignoring, withholding, hiding, or discounting 
information and not using the best scientific and commercial 
information available to be baseless. In the final listing rule, 
proposed critical habitat rule, revised proposal, and this final rule, 
we describe the habitat, migratory and arrival patterns, nesting 
behavior, and behaviors of the western yellow-billed cuckoo and its use 
of habitat in great detail. The available information on the species' 
life history and habitat use patterns is well documented by the 
scientific community. As a result, we have sufficient information to 
determine the areas essential to the conservation of the species as 
critical habitat. Under the Act, we are required to designate critical 
habitat for threatened and endangered species. The commenter's 
statement that the existing regulatory mechanisms are sufficient to 
protect habitat for the species is confusing one of the factors 
considering in listing a species under the Act with the designation of 
critical habitat. The Act requires Federal agencies to use their 
authorities to conserve endangered and threatened species and to 
consult with the Service about actions that they carry out, fund, or 
authorize to ensure that they will not destroy or adversely modify 
critical habitat. The prohibition against destruction and adverse 
modification of critical habitat protects such areas in the interest of 
conservation. In our determination of critical habitat, we took into 
account the regulatory requirements of listing the western yellow-
billed cuckoo as a threatened species and evaluated any incremental 
impacts and additional regulatory responsibilities of designating 
critical habitat. We found that any increase in regulatory requirements 
as a result of critical habitat would most likely be administrative in 
nature in regard to Federal agency compliance with evaluating any 
adverse modification aspects of actions they carry out, fund, or 
authorize.
    Comment 70: In 2015, we received a spreadsheet outlining 83,454 
identical comments supporting critical habitat and 3,609 nearly 
identical public comment letters. We also received another spreadsheet 
containing 6,317 nearly duplicative comments in 2020. The latter 
commenters were similarly supportive of critical habitat but stated 
that all habitat should be designated including additional areas 
smaller than 200 ac (81 ha) due to the decline of the species and its 
habitat. The 2020 comments supported the inclusion of additional areas 
not identified in the 2014 proposal, but were disappointed that 
numerous areas were removed or partially removed (i.e., Eel (CA), Yampa 
(CO), Conejos (CO), Santa Maria (AZ), and Carson (NV) Rivers) without 
reason and stated that we should protect additional areas including 
every stream and river stretch where western yellow-billed cuckoos 
nest. They state that many of these areas are targeted for development, 
and so a failure to protect them will eliminate places for western 
yellow-billed cuckoos to nest. As a result, they stated that the 
current proposal is insufficient for recovery of the species.
    Our Response: In our revised proposed critical habitat, we 
developed and described our conservation strategy to identify those 
areas considered to be essential to the conservation of the species. In 
implementing our strategy, we focused on designating areas where the 
western yellow-billed cuckoo has shown to have consistent and recent 
occupation as a breeder. Consequently, areas where sightings or 
presumed breeding were sparse or inconsistent were not included in the 
2020 proposal, as these areas were not considered as part of our 
conservation strategy for designating critical habitat. Not designating 
areas as critical habitat does not mean they are unprotected under the 
Act. The western yellow-billed cuckoo is a threatened species and is 
protected by the prohibitions in section 9 the Act. Critical habitat is 
just one of the tools we use for species conservation. Not including 
areas as critical habitat does not mean the areas outside the critical 
habitat boundaries are not important or cannot be identified in future 
recovery planning. We stand by our strategy for designating critical 
habitat for the western yellow-billed cuckoo as the areas identified 
contain the PBFs, meet the definition for critical habitat, and support 
relatively large consistent breeding habitat for the species.
    Comment 71: One organization and others stated that they were 
opposed to limiting the designation and that a full NEPA analysis be 
conducted. They also state that the Service does not adequately 
describe economic benefits of designation of critical habitat. They 
contend that the Service erroneously relies on plans for other species 
to exclude areas from critical habitat and that if exclusions occur, 
they should have clear explanations on why the areas are excluded. The 
commenters stated that the Service should ensure that the designation 
will not interfere with habitat restoration efforts to remove tamarisk. 
Lastly the commenters contend that the Service should ensure that no 
agricultural application of pesticides has the potential to affect 
western yellow-billed cuckoo or alternatively the Service should expand 
units that are adjacent to areas with agricultural use so that the 
application of pesticides does not impact the species or its insect 
prey. Another commenter stated rotenone was of particular concern.
    Our Response: We developed a conservation strategy to determine 
which areas to consider as critical habitat. This strategy has led us 
to

[[Page 20818]]

appropriately identify the extent and distribution of critical habitat 
for the western yellow-billed cuckoo (see Conservation Strategy). The 
designation provides for critical habitat in areas that have shown 
consistent breeding and typically have a large number of breeding 
birds. The designation provides for habitat in each of the differing 
landscape level ecosystems where the western yellow-billed cuckoo 
occurs.
    In regard to economic benefits, a primary reason for conducting the 
economic analysis is to provide information regarding the economic 
impacts and benefits associated with a critical habitat designation. 
Executive Order 12866 directs agencies to assess the costs and benefits 
of any regulatory action. The primary intended benefit of critical 
habitat is to support the conservation of threatened and endangered 
species, such as the western yellow-billed cuckoo. However, public 
perception of limits imposed by the regulation may inadvertently cause 
changes in future land use, and as a result may provide additional 
benefits to the species and its habitat. In our economic analysis, data 
limitations prevented us from quantifying such additional economic 
benefits. Quantification of these benefits would require primary 
research and the generation of substantial amounts of new data, which 
is beyond the scope of our analysis and Executive Order 12866.
    Prior to publication of the revised proposed rule, we completed a 
draft NEPA analysis for the designation of critical habitat and made 
the document available to the public by request or through the 
Sacramento Fish and Wildlife Office website. After the public comment 
period and our determination of the areas to be designated, we 
finalized an environmental assessment with a finding of no significance 
under NEPA. In our process for excluding areas from critical habitat, 
we conduct a balancing analysis describing the benefits of including an 
area as critical habitat versus the benefits of excluding an area as 
critical habitat. Our reasoning and logic for coming to our conclusion 
on whether we are or are not excluding an area is included for each 
exclusion and follows our Policy for Exclusions (81 FR 7226) (see 
Exclusions).
    As for using other species' management plans as justification to 
exclude an area, we do this on a case-by-case basis. For us to consider 
use of other species' management plans, we look to whether habitat 
needs and use are similar for each species to the point that the 
management of the other species' habitat will also benefit the western 
yellow-billed cuckoo. For this designation we have looked at numerous 
southwestern willow flycatcher management plans and found that in cases 
where breeding areas overlap, management actions to protect and 
conserve riparian habitat are generally consistent for both species and 
that using these plans is appropriate for conservation of the western 
yellow-billed cuckoo.
    Restoration of habitat to eliminate tamarisk could benefit the 
western yellow-billed cuckoo. However, the restoration of riparian 
habitat is difficult and requires long-term commitments from 
stakeholders. Mere removal of tamarisk, despite being a nonnative 
species, would be strongly discouraged regardless if the area is within 
critical habitat or not. In Arizona and New Mexico, the western yellow-
billed cuckoo uses and breeds in tamarisk-dominated sites, especially 
if other native vegetation components still exist at the site. The 
western yellow-billed cuckoo also uses areas dominated by tamarisk for 
foraging. Actions to remove tamarisk and restore riparian vegetation 
would also need to go through section 7 consultation or section 10 
permitting requirements due to the western yellow-billed cuckoo being 
listed as a threatened species with critical habitat being evaluated 
only as to whether Federal actions carried out, funded or permitted 
would adversely modify such areas as defined by the Act.
    The western yellow-billed cuckoo is protected by all the section 9 
prohibitions under the Act, which includes actions that harm, pursue, 
hunt, shoot, wound, kill, trap, capture, or collect, or attempt to 
engage in such conduct. Pesticide use and application for agricultural 
purposes, including use of rotenone, is already regulated under 
Federal, State, and County laws, regulations, or permits. Such 
application takes into account measures to avoid and reduce impacts to 
wildlife and nontarget areas. Expanding additional area around critical 
habitat is not the intent of designation under the Act and our 
implementing regulations. In determining critical habitat, we are to 
identify those areas essential to the conservation of the species by 
identifying areas that contain those physical or biological features 
used by the species. Including additional areas that do not contain any 
physical or biological features would be contrary to our implementation 
of the Act.
    Comment 72: One commenter was concerned that all of the areas 
previously identified in 2014 were not being included and that the new 
areas identified in 2020 are still not sufficient for conservation and 
recovery of the species. The commenter states that the Service should 
identify areas as critical habitat for foraging, dispersal, and 
migration (including unoccupied areas in the species' historical range) 
and that the 200-ac (81-ha) minimum size filter should be removed. 
Lastly, the commenter states that the Service should not exclude any 
areas, especially those that rely on southwestern willow flycatcher 
management plans.
    Our Response: In determining critical habitat for the western 
yellow-billed cuckoo, we developed a conservation strategy to identify 
those areas essential to the conservation of the species. We made the 
changes from 2014 to 2020 to reflect implementation of this strategy 
(see Criteria Used to Identify Critical Habitat (Conservation 
Strategy)). In delineating the areas, we included breeding habitat that 
also accounts for western yellow-billed cuckoo needs for foraging, 
dispersal, and migration. We did not consider unoccupied areas for 
critical habitat because we determined that occupied areas were 
sufficient to conserve the species. In response to our 200-ac (81-ha) 
selection criterion, we used this as a general rule rather than a 
strict cut-off of considering areas. In our proposed rule, we took into 
account the importance and distribution of habitat and included several 
areas in the revised proposed rule that included less than 200 ac (81 
ha). These areas have been excluded from the final designation due to 
management. We have determined that our exclusion of certain areas 
meets our standards under section 4(b)(2) of the Act in that the 
benefits of exclusion outweigh the benefits of inclusion as critical 
habitat and will not lead to extinction of the species (see 
Exclusions).
    Comment 73: Several environmental organizations specifically raised 
concerns that the areas identified at Elephant Butte Reservoir be 
expanded to include additional critical habitat. They also suggested 
justification and changes to the Service's conservation strategy, and 
that the Service must do a carrying capacity for units before we 
discount designating unoccupied areas.
    Our Response: In our 2020 revised proposed rule, partly in response 
to comments received in 2014 and 2015, we extended the proposed 
designation of the Rio Grande from Elephant Butte Reservoir upstream 
(Unit 37, NM-6B) to better reflect the areas being used as breeding 
areas by the western yellow-billed cuckoo.
    As a result of comments received, we reviewed our conservation 
strategy and made minor edits and included additional language for its 
justification

[[Page 20819]]

(see Criteria Used to Identify Critical Habitat (Conservation Strategy) 
in this document).
    Although we didn't complete a carrying capacity for the designation 
as suggested by the commenters, based on the information available, 
some areas have sufficient habitat that is underused by the species. 
One example of this is habitat along the Sacramento River in 
California. In our designation of critical habitat, we included a large 
extent of habitat along the Sacramento River, which, despite losses, 
has had a large population of breeding western yellow-billed cuckoos. 
In recent years, this area has been and continues to be the focus of 
numerous habitat restoration efforts to assist in development of 
riparian habitat for numerous sensitive and listed species. Although 
these restoration efforts have made more habitat available, the western 
yellow-billed cuckoo has not reoccupied these areas; consequently, 
habitat is not currently considered a limiting factor for the species 
(Dettling et al. 2015, pp. 6-13).
    Comment 74: One commenter stated that the critical habitat 
designation should be expanded to protect more areas to accommodate for 
species shifts in habitat use due to changing environmental conditions 
brought about by climate change. The commenter cites one journal 
article to support its claims regarding climate change (Thomas and 
Gillingham 2015, entire).
    Our Response: The study referenced by the commenter contends that 
conservation of a species may be assisted by preserving and protecting 
areas throughout and outside a species' range to make habitat available 
to address potential changes of habitat conditions resulting from the 
effects of climate change. The western yellow-billed cuckoo is a wide-
ranging species and still occurs throughout its historical range from 
southwestern Canada down to Mexico during its breeding season. 
Environmental conditions within this wide north-south range vary 
greatly, and the effects of climate change identified for this species 
were found not to be a major concern due to this variability in habitat 
and the species' ability to seek out appropriate habitat (see Critical 
Habitat). Based on our conservation strategy for designating critical 
habitat, the extent and distribution of areas identified in the revised 
proposed rule and this final rule meet our requirements under the Act 
to designate areas essential to the conservation of the western yellow-
billed cuckoo as critical habitat and will most likely incorporate any 
variability in environmental conditions due to the effects of climate 
change.
    Comment 75: Numerous commenters stated that the designation of 
critical habitat would impact water management and disrupt water 
availability, distribution, and delivery operations in the range of the 
western yellow-billed cuckoo.
    Our Response: The disruption and changes to ``natural'' river and 
stream processes, which help the development and regeneration of 
riparian vegetation, have been identified as a threat to the species. 
However, the majority of streams and water delivery facilities within 
the range of the western yellow-billed cuckoo are at least partly 
managed by Federal entities or would have a Federal nexus. As a result, 
these Federal agencies and other entities that are funded or permitted 
by the Federal entity have an obligation to conserve endangered or 
threatened species and their habitat. However, since listing of the 
western yellow-billed cuckoo, we have not become aware and the 
commenter did not provide any examples of any major changes to water 
availability, distribution, and delivery operations in the range of the 
western yellow-billed cuckoo. Our economic analysis did not identify 
these water management actions as incurring significant costs. As a 
result, water management actions are unlikely to be disrupted. To the 
extent agencies propose to modify their water management actions in a 
manner that does not appreciably diminish the value of the critical 
habitat as a whole for the western yellow-billed cuckoo, it is unlikely 
that these activities would meet the definition of destruction or 
adverse modification of critical habitat under the Act.
    Comment 76: Numerous commenters stated that the western yellow-
billed cuckoo has lost nearly 90 percent of its breeding habitat due to 
human activities and that the species is further threatened by water 
delivery and water management activities in the West. As a result, the 
Service should designate additional areas as critical habitat.
    Our Response: In our October 3, 2014, final listing rule (79 FR 
59992), and in our February 27, 2020, revised proposed designation of 
critical habitat (85 FR 11458), we discuss habitat loss for the species 
from various actions as well as the impacts associated with water 
delivery and management. We consider existing water management 
operations in place on riverine segments identified as critical 
habitat, unless modified subsequent to this revised proposed 
designation, are unlikely to have any discernible effect on the 
quantity, quality, or value of the PBFs of the area identified as 
critical habitat. That is, when evaluating the effects on critical 
habitat, we consider ongoing water management operations at Federal 
facilities within the areas identified as critical habitat are often 
not within the agency's discretion to modify and would be part of the 
baseline in any effects analysis. This is particularly true of areas 
upstream of reservoirs. The normal operations of filling and draw-down 
of reservoirs often mimic the flooding and drying events associated 
with intact riparian woodland habitat and river systems providing 
habitat for the western yellow-billed cuckoo. Therefore, we do not 
expect that the continuation of existing water management operations 
would appreciably diminish the value or quality of the habitat. As a 
result, we consider the amount and distribution of critical habitat we 
identified to be appropriate based on the conservation strategy we 
developed for the designation of critical habitat for the western 
yellow-billed cuckoo.
    Comment 77: One commenter stated that the designation of critical 
habitat is duplicative regulation in that regulations are already in 
place to protect riparian habitat and waterways. The Service should not 
just focus on habitat in the United States, but look to other areas for 
conservation actions, especially in their wintering grounds in South 
America.
    Our Response: Because the western yellow-billed cuckoo is a 
threatened species, we are required under the Act to designate critical 
habitat. According to the Act, critical habitat applies only to areas 
in the United States and not to areas in other countries as it applies 
to actions conducted, funded, or permitted by U.S. Federal entities. 
Although the commenter is correct that conservation actions should be 
taken to protect and conserve areas in the western yellow-billed 
cuckoo's wintering grounds, we cannot designate critical habitat in 
other countries.
    Comment 78: One commenter claimed that additional research is 
needed to determine which areas should be protected and considered 
critical habitat for the western yellow-billed cuckoo especially in 
light of future habitat loss from development.
    Our Response: We are required to designate critical habitat based 
on the best scientific and commercial data available. We have extensive 
information on habitat use by the species and consider our designation 
to be appropriate based on that information and our conservation 
strategy. Should new information

[[Page 20820]]

become available that requires revision of critical habitat, we have 
the authority to do so under the Act.
    Comment 79: Several commenters stated that the Service relies on 
unfounded claims regarding habitat loss and is not in compliance with 
its requirements to use the best science available in making critical 
habitat determinations. Several other commenters state that the threats 
from livestock from overgrazing are unfounded based on existing range 
management practices. They specified that the designation of critical 
habitat is expected to place a significant economic burden on livestock 
grazing operations within the States of California, Arizona, and New 
Mexico. They opposed the proposed rule and requested that overgrazing 
be removed from the language of the rule. In addition, one commenter 
states that the maps showing the designation of critical habitat are 
difficult for landowners to determine critical habitat accurately and 
should determine habitat boundaries to the nearest inch.
    Our Response: The loss of habitat from numerous threats is well 
documented throughout the range of the western yellow-billed cuckoo. 
One compendium identifies 480 state-of-knowledge publications about the 
threats facing and factors contributing to the loss of riparian habitat 
in the West, including the effects from agriculture, climate change, 
dam construction, disease, drought, nonnative species, fire, floods, 
flow regulation, forest harvesting, grazing, groundwater depletion, 
insects, mining, recreation, roads, water diversions, urbanization, and 
water quality (Poff et al. 2012, entire). We did not include all the 
references cited in this publication in our proposed rule for critical 
habitat, as the focus of designating critical habitat is not threat 
identification or loss but determining areas essential to or for the 
conservation of a threatened or endangered species.
    Our intent of identifying cattle grazing in the 2020 revised 
proposed rule was not to imply that all cattle grazing activities are 
detrimental to habitat for the western yellow-billed cuckoo; on the 
contrary, we mentioned cattle grazing to identify areas where proper 
grazing operations have been implemented to either coexist or enhance 
habitat conditions. We have clarified the language regarding livestock 
grazing in this final rule. Our economic analysis of the incremental 
impacts of critical habitat did not identify significant costs 
attributed to the designation of critical habitat for livestock grazing 
operations throughout the designation.
    Our maps in the proposed and this final designation follow certain 
guidelines to incorporate such maps within the Federal Register. Exact 
maps showing land ownership and details to the scale recommended by the 
commenter are not feasible to include in the Federal Register. We 
stated in our proposed rule and this document that additional 
information regarding the critical habitat can be obtained by 
contacting the Lead Field Offices for the designation.
    Comment 80: One group raised several concerns regarding the 
designation. The commenter claims that the Service does not adequately 
identify its rationale for determining and justifying whether areas are 
occupied by the western yellow-billed cuckoo and as a result fails to 
justify designating unoccupied areas. The commenter states that the 
Service also needs to further justify its conservation strategy by 
explaining how it comports with the statutory and regulatory procedures 
of the Act. They further state that the Service underestimates economic 
costs by limiting the costs to ``administrative'' costs, and lastly the 
textual exclusions should be expanded beyond ``manmade structures'' by 
revising our definition of aqueducts to include ditches, canals, and 
related structures and include maintenance and vegetation removal in 
right-of-ways.
    Our Response: We consider the areas selected as critical habitat to 
be occupied based on survey records, State Heritage occurrence data, 
surveys, published documents, and information received during the 
public comment periods. In our selection of breeding areas, we used 
this information and selected those areas that showed recent and 
consistent occupation as a breeding site or assumed breeding based on 
timing and behavior. One of our purposes of revising the 2014 proposal 
was to focus on those areas that documented this information and not to 
designate areas that have sporadic or low breeding numbers. Because we 
appropriately document and justify the areas as being occupied, we do 
not inappropriately negate our obligation to discuss unoccupied 
critical habitat. See Selection Criteria and Methodology Used to 
Determine Critical Habitat for a discussion of our rationale for 
determining critical habitat.
    In determining critical habitat, as described in our 2020 revised 
proposed and in this final rule, we developed a conservation strategy 
to identify those areas essential to the conservation of the western 
yellow-billed cuckoo as defined under section 3(5)(A)(i) of the Act. 
Because one or more of the physical or biological features identified 
for the western yellow-billed cuckoo occur throughout most areas 
occupied by the DPS, we used the conservation strategy to assist us in 
determining those areas that are essential to the conservation of the 
species.
    Our economic analysis appropriately considers those incremental 
effects of the designation of critical habitat and applies costs to the 
incremental actions and not additional costs for actions in unoccupied 
habitat. As stated above, because we consider the areas occupied, the 
majority of costs associated with the designation are incremental to 
costs to Federal agencies for actions they conduct, fund, or permit 
that may affect the species. With the addition of critical habitat, 
Federal agencies will now also analyze whether their actions within the 
critical habitat boundaries result in adverse modification or 
destruction of designated critical habitat, and we consider those costs 
to be administrative in extent.
    In regard to expanding our textual exclusion descriptions, our 
descriptions are adequate and the list of manmade features are merely 
examples of the types of features that do not constitute critical 
habitat within the designated areas. The commenter should focus on 
whether the feature is manmade and hardened such that any physical or 
biological features would not be present. In response to vegetation 
clearing from right-of-ways see our response to Comments 7 and 56 
above.
    Comment 81: One commenter claims that the Service is reversing its 
longstanding view that western yellow-billed cuckoo habitat comprises 
riparian woodlands along large streams and that it needs large areas 
for breeding. This change to the Service's identification of habitat 
and use by the species greatly increases the habitat available for the 
western yellow-billed cuckoo. The commenter estimates that over 65 
million ac (26 million ha) of habitat are available for use by the 
species based on the Service's description and on eBird record 
information (Cornell Lab of Ornithology 2020, entire). The commenter 
then concludes that the Service needs to reevaluate the species' 
listing status as threatened because it did not consider this habitat 
use and availability in its 2014 listing determination.
    Our Response: Our identification of habitat follows our 
requirements to specifically identify the areas containing the physical 
or biological features (PBFs) essential to the conservation of the 
species. After publication of the

[[Page 20821]]

2014 proposed critical habitat, we received comments that our 
description of the primary constituent elements (now referred to as 
PBFs) were not descriptive enough and did not characterize habitat 
specifically for the western yellow-billed cuckoo. In response to those 
comments, we revised the description of the PBFs to better describe the 
habitat used by the species so that Federal action agencies and the 
public could more easily identify such areas. Except for areas 
identified as critical habitat associated with monsoon influenced 
habitat in southern Arizona, we have not significantly changed the 
areas considered as breeding areas used by the western yellow-billed 
cuckoo. We have completed our status review of the western yellow-
billed cuckoo, which includes an evaluation of the additional habitat 
used by the species and found that delisting was not warranted (85 FR 
57816).
    Comment 82: One commenter expressed concern for designating 
critical habitat in areas where the species has not been recently 
documented.
    Our Response: We used the most current information available to 
determine occupancy of areas we are designating as critical habitat. 
The information we used included State natural heritage data, survey 
information, section 10 permit reports as well as online public 
occurrence information (Cornell Lab of Ornithology 2020, entire). We 
solicited for and received additional occupancy information during our 
public comment periods. A part of our selection criteria was to not 
identify areas with older or limited detection information so that we 
could focus the critical habitat designation on areas with relatively 
large numbers and consistent occupation within the timeframe we chose 
to determine occupancy (see Selection Criteria and Methodology Used to 
Determine Critical Habitat).
    Comment 83: Multiple commenters were in favor of conservation 
efforts to protect the western yellow-billed cuckoo. However, one 
commenter expressed concern that critical habitat designation would 
burden State regulatory agencies and restrict conservation activities 
on private lands.
    Our Response: We are statutorily required to designate critical 
habitat for a federally listed species if it is determined to be both 
prudent and determinable. We made a determination that critical habitat 
was both prudent and determinable in our proposed and revised proposed 
critical habitat rules (79 FR 48548 and 85 FR 11458, respectively). The 
designation of critical habitat does not specifically restrict 
activities on private lands unless those activities require Federal 
approval or are federally funded. Some third party entities (e.g., 
State or County governments) may require additional regulatory reviews 
and other requirements as a result of the area's inclusion as critical 
habitat, but those additional reviews are not a requirement under the 
Act. We welcome the implementation of conservation measures that would 
benefit the western yellow-billed cuckoo and its habitat as long as 
those activities take into account impacts to the species either 
through section 7 or section 10 of the Act.
    Comment 84: Several local government entities raised concern that 
designation of critical habitat in Colorado (Units 68 and 69) could 
have severe economic impacts to areas of significant agricultural 
production in Colorado that rely on continued operation of irrigation 
facilities.
    Our Response: Our economic analysis did not find that there would 
be significant economic impacts to agriculture from the designation of 
critical habitat. This includes impacts to third party entities such as 
local governments or private landowner activities. The majority of 
impacts to agricultural stakeholders are associated with listing of the 
species as threatened under the Act and remain unchanged by this 
designation.
    Comment 85: Several commenters stated that Unit 68 should not be 
designated as critical habitat because designation could delay and 
derail restoration activities and construction of the recreational 
Riverfront Trail, and inhibit management of local riverfront parks.
    Our Response: We fully support riparian restoration activities such 
as tamarisk removal and willow or cottonwood plantings, which benefit 
the public as well as listed and non-listed native species. The 
designation of critical habitat in Unit 68 would not prevent further 
restoration activities along the Colorado riverfront area; rather, it 
could help support continued restoration actions and potential 
additional funding. Additionally, since the time of initial proposed 
critical habitat in 2014 (79 FR 48548), much of the Riverfront Trail 
and associated development has already been completed. We understand 
the perception that there could be economic and recreation 
opportunities affected by the designation. For Federal projects in the 
area, consultation with the Service is already required because it is 
within the known range of the species. Designating critical habitat in 
the area does not change that; it just ensures that Federal projects do 
not cause adverse modification to western yellow-billed cuckoo habitat. 
Although there is further development planned for the riverfront area, 
most of these actions are not in conflict with designation of critical 
habitat because the areas being developed in the area do not provide 
the physical and biological features needed for western yellow-billed 
cuckoo and are not critical habitat by definition.
    Comment 86: Several commenters in Colorado requested more public 
outreach and information regarding the designation and potential 
economic impacts of critical habitat.
    Our Response: For the proposed and revised proposed designation, we 
noticed and provided public outreach directly and indirectly to city 
and local entities. In conducting outreach, we strove to engage the 
public through multiple traditional and social media outlets. The 2020 
economic analysis found that most economic impacts from critical 
habitat designation are due to perceived increases in Federal 
regulation, especially on property values, rather than actual 
regulations. To this extent, our Grand Junction Ecological Services 
Field Office is available to meet to clarify the implications of 
critical habitat designation.
    Comment 87: One group requested elimination of all proposed 
critical habitat within Delta County, Colorado.
    Our Response: We have considered and applied the best scientific 
and commercial information available regarding the designation of 
critical habitat for the western yellow-billed cuckoo. Due to the 
continued occupancy and breeding of western yellow-billed cuckoo in the 
North Fork of the Gunnison River and alignment of the area with our 
conservation strategy, we consider the areas identified as critical 
habitat to be appropriate and essential to the conservation of the 
species. In regard to the commenter's request to exclude areas from the 
critical habitat designation, the commenters provided no specific 
information or reasoned rationale as described in our preamble 
discussion in our Policy on Exclusions (81 FR 7226) and as requested in 
our revised proposed rule designating critical habitat for the western 
yellow-billed cuckoo (85 FR 11502) to support requests for exclusion. 
For the Service to evaluate an exclusion request, the commenter must 
provide supporting information concerning how their activities would be 
limited or curtailed by the designation. Therefore, we did not

[[Page 20822]]

exclude any areas in Delta County, Colorado.
    Comment 88: A commenter expressed concern that critical habitat 
would affect 9 outfall locations in natural drainages, 19 open (un-
piped) and 3 piped historical outfalls to the Colorado River, as well 
as municipal drainage facilities. The risk of flooding increases if 
they are not able to clear drainages.
    Our Response: Designation of critical habitat would only affect 
actions funded or permitted through a Federal nexus. In such 
circumstance, the Federal agency would need to consult with the Service 
and conduct an adverse modification analysis if the proposed action 
would impact designated critical habitat. Federal agencies are already 
required to consult with the Service if their actions would affect the 
species.
    Comment 89: One group commented that critical habitat should also 
be designated on the Gunnison River, south of Delta, Colorado; along 
the Colorado River through McInnis Canyon National Conservation Area to 
the Utah State line; side drainages as well as main rivers; and areas 
that could become habitat in the future if managed better. Similarly, 
another commenter stated that areas on Plateau Creek between Collbran 
and Plateau Valley, and areas in Hotchkiss and Paonia that require 
restoration should be included in the designation.
    Our Response: Although western yellow-billed cuckoo may migrate 
through the habitat in areas along the Gunnison River and the Colorado 
River west of Grand Junction, we focused our critical habitat 
designation on areas occupied at the time of listing that provide the 
patch sizes generally preferred by western yellow-billed cuckoo for 
breeding, and avoided selection of small and isolated riparian areas 
(85 FR 11464). We identified critical habitat in areas that are 
currently used for breeding and contain the PBFs essential to the 
conservation of the species. We have determined that these areas are 
sufficient and meet our requirements of designating critical habitat 
for the species and did not look at areas that didn't meet our breeding 
criteria or needed restoration and were unoccupied such as those 
identified by the commenters.
    Comment 90: Mesa County, Colorado, commented that the economic 
analysis is not specific to Mesa County and the Grand Valley and is 
concerned over restricted land use, especially in Palisade where there 
are many vineyards and orchards.
    Our Response: The draft economic analysis describes the estimation 
of economic impacts from designating critical habitat. The analysis 
describes the primary cost associated with designating critical habitat 
from additional analysis in section 7 consultation for effects to 
critical habitat and adverse modification. The rangewide administrative 
burden resulting from the designation was found to be not significant 
and no single area identified as critical habitat was found to have 
disproportionate cost requiring additional analysis. Orchards and 
vineyards do not contain the physical or biological features essential 
to the conservation of the species and are therefore not considered 
critical habitat, even if those areas are within the critical habitat 
boundary.
    Comment 91: Commenters recommended that critical habitat be 
designated in southeastern Colorado on the Upper Rio Grande and Conejos 
Rivers because the San Luis Valley Habitat Conservation Plan seems more 
protective of southwestern willow flycatcher and yellow-billed cuckoo 
critical habitat should be designated independent of any other species' 
critical habitat.
    Our Response: We revised critical habitat units for the 2020 
revised proposed rule in accordance with the conservation strategy 
described within the document. In addition to the protections to 
western yellow-billed cuckoo from the HCP, the previously proposed 
units did not meet the conditions of our conservation strategy to 
designate critical habitat, because the number of breeding pairs was 
low or because breeding was intermittent.
    Comment 92: Multiple commenters recommended that the Service 
designate critical habitat in unoccupied areas to allow expansion of 
the current occupied range.
    Our Response: We have considered and applied the best scientific 
and commercial information available regarding designation of critical 
habitat for the western yellow-billed cuckoo. We have determined that 
we can better conserve the species by focusing on occupied breeding 
areas that have been and are consistently used by the species. As a 
result we developed a conservation strategy that identified certain 
areas throughout the species range. The extent and distribution of 
these areas along main-stem rivers throughout the species' breeding 
range and the migratory behavior of the western yellow-billed cuckoo 
allows these areas to naturally be used as pathways and stop-over 
habitat. As a result, the designation of unoccupied areas is not 
necessary or justified.
    Comment 93: Two commenters requested that proposed exclusions in 
Units 68 and 69 be avoided pending verification of appropriate 
management plans for those areas.
    Our Response: In our proposed and this final rule, we did not 
identify or exclude areas from Unit 69 (CO-2) because no information 
was provided to support their request for conducting an analysis. We 
have considered the management plans for Colorado State lands in Unit 
68 and find that the benefits of excluding these areas outweigh the 
benefits of designation of critical habitat in these areas and that the 
exclusion will not lead to the extinction of the species. As a result, 
we have excluded certain areas from Unit 68 from the final designation. 
See Exclusions, Private or Other Non-Federal Conservation Plans or 
Agreements and Partnerships, in General.
    Comment 94: In 2014, one commenter stated that there is not enough 
information about proposed critical habitat sites in Colorado 
(previously identified as Units 54 and Units 57-60) to exclude or 
include them in critical habitat and that the Service did not fully 
consider a peer-reviewer's recommendations of three additional sites to 
consider: Collbran/Plateau City (Plateau Creek in Mesa County), 
sections of the La Plata River (La Plata County, Colorado), and 
sections of the Piedra River (La Plata County, Colorado), where birds 
have been detected on private property during the breeding season but 
suitable habitat is dependent on irrigation ditches for water.
    Our Response: We revised critical habitat units for the 2020 
revised proposed rule in accordance with the conservation strategy 
described within the document. We have considered and applied the best 
available scientific and commercial information regarding habitat for 
the western yellow-billed cuckoo, including all peer-reviewed and 
public comments. We reviewed all areas identified by the commenter as 
to whether they met our goals identified in our conservation strategy 
and criteria for designation. We have determined that the additional 
areas identified by the peer reviewer did not meet our designation 
criteria due to lack of breeding information and suitable habitat 
requiring additional management.
    Comment 95: One organization requested the Service provide details 
on the ``other'' category of Table 1 (85 FR 11477-11478) for Units 68 
and 69 in Colorado.
    Our Response: The ``other'' category contains all property owned by 
counties, cities, private landowners, or

[[Page 20823]]

unknown ownership. Table 1 has been updated with new parcel information 
for Unit 68 with 2,766 total ac (1,119 ha) in the ``other'' category. 
This includes approximately 500 ac (202 ha) owned by cities, 106 ac (43 
ha) owned by Mesa County, approximately 14 ac (6 ha) owned by a 
nongovernmental organization, 1,302 ac (527 ha) privately owned, and 
844 ac (342 ha) with unknown ownership. Unit 69 has not been changed, 
and ownership is also identified in Table 1. The implications of 
critical habitat designation on lands in the ``other'' category do not 
differ amongst each other, as effects to critical habitat would need to 
be considered only in the case of a Federal nexus.
    Comment 96: One commenter stated that the Service should consider 
the economic benefits of wildlife and bird watching and recreation in 
riparian habitats.
    Our Response: In our economic analysis, data limitations prevented 
us from quantifying such additional economic benefits. Quantification 
of these benefits would require primary research and the generation of 
substantial amounts of new data, which is beyond the scope of our 
analysis and Executive Order 12866. Although the information regarding 
economic benefits is important, we cannot determine those benefits at 
this time.
    Comment 97: The group commented on Unit 67 (ID-3) of the revised 
proposed rule and suggested revisions to the unit description and 
recommended deleting several threats regarding water delivery and 
hydrologic functioning identified in Table 2 (Threats to Habitat and 
Potential Special Management Considerations). The commenter stated that 
water management actions and existing hydrology are sufficient to 
support the critical habitat designation on the Henry's Fork River and 
South Fork of the Snake River. The Henry's Fork Foundation provided 
information regarding a hydrologic study being conducted by Utah State 
University through funding from a partnership of several Federal, 
State, and other stakeholders of existing water management in the Snake 
River basin to support its request.
    Our Response: As a result of comments, we revised the unit 
description for Unit 67. In the Application of the ``Adverse 
Modification'' Standard section, we address existing water management 
operations in place on riverine segments identified as critical 
habitat, unless modified subsequent to this revised designation, and 
state that these operations are unlikely to have any discernible effect 
on the quantity, quality, or value of the PBFs of the area identified 
as critical habitat for the western yellow-billed cuckoo since these 
areas support western yellow-billed cuckoo habitat and breeding with 
the existing management in place. That is, when evaluating the effects 
on critical habitat, we consider ongoing water management operations 
within the designated units that are not within the agencies' 
discretion to modify to be part of the baseline of an effects analysis. 
Reclamation is mandated through the Flood Control Act of 1944 [16 
U.S.C. 460d (and various sections of titles 33 and 43 U.S. Code)] to 
manage water operations on the South Fork and the Henry's Fork of the 
Snake River. Therefore, the management and flows of the South Fork and 
the Henrys Fork of the Snake River are not expected to be impacted by 
the designation of critical habitat. As a result, we have revised the 
actions that may require special management considerations from Table 2 
of this final rule.
    Comment 98: Several commenters recommended in 2014 and 2020 that 
the Service extend Unit 67 (ID-3) to include additional areas upstream 
of the unit and to add more cottonwood forest lands managed by the BLM 
and the USFS along the Henry's Fork and South Fork of the Snake River 
upstream to Palisades Dam. Further, the commenter suggested including 
the USFS and BLM island complex of habitat in Swan Valley, Idaho, where 
western yellow-billed cuckoos were detected by Idaho Department of Fish 
and Game survey crews in 2011. One of the commenters suggested 
including the Boise River from eastern Boise to the Snake River.
    Our Response: We reviewed the information regarding western yellow-
billed cuckoo occurrence and habitat upstream of the area described in 
our 2014 proposed critical habitat and revised Unit 67 (ID-3) as 
described in our 2020 revised proposed critical habitat designation to 
include the additional areas as requested.
    The Swan Valley locations recommended for inclusion constitute 
habitat supportive of the western yellow-billed cuckoo; however, they 
are isolated from other areas of habitat, and the observation record 
indicates it is only sporadically occupied. The Boise River is 
considered to be periodically used by western yellow-billed cuckoo as 
stop-over habitat, but also does not have consistent use associated 
with breeding individuals of the species. As a result, we did not 
consider critical habitat in these areas based on our Conservation 
Strategy and criteria for designating critical habitat.
    Comment 99: One group stated that the western yellow-billed cuckoo 
appear only sporadically in Idaho and do not currently exist there. 
They state that the species has not suffered from loss of habitat and 
that the designation of critical habitat will not increase western 
yellow-billed cuckoo populations. They further state that the Service 
has not considered the negative impact on the economy and that the 
designation of critical habitat will be extremely detrimental to 
private and locally owned property.
    Our Response: The current range of the western yellow-billed cuckoo 
includes portions of or the entire States of Arizona, California, 
Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Texas, Utah, and 
Washington as well as into southwestern British Columbia, Canada. 
However, the breeding range for the species has contracted with a 
northern extent in southeastern Idaho. Western yellow-billed cuckoos 
consistently use habitat along the South Fork Snake River, Henry's Fork 
Snake River, and the mainstem Snake River (Reynolds and Hinckley 2005; 
IDFG 2013). As identified in our final listing rule, one of the reasons 
for decline of the breeding range for the species has been habitat 
loss. We are required to designate critical habitat for threatened and 
endangered species under the Act. Several benefits of critical habitat 
are that it requires Federal agencies to consult with the Service to 
avoid destruction or adverse modification of critical habitat and 
identifies areas to focus conservation. Increasing populations may or 
may not be an outcome of a designation of critical habitat, but are not 
a requirement for designation.
    The designation of critical habitat does not authorize the Service 
to regulate private actions on private lands or to confiscate private 
property as a result of a critical habitat designation. Designation of 
critical habitat does not affect land ownership or establish any 
closures or restrictions on use of or access to the designated areas. 
Critical habitat designation also does not establish specific land 
management standards or prescriptions, although Federal agencies are 
prohibited from carrying out, funding, or authorizing actions that 
would destroy or adversely modify critical habitat. We conducted an 
economic analysis on the revised proposed critical habitat designation. 
The economic analysis took into consideration the incremental economic 
impacts above those associated with listing of the species as 
threatened under the Act. Because the species is listed, private and 
local land-owners

[[Page 20824]]

would still be subject to section 7 (if their actions require Federal 
funding or permitting) and section 10 under the Act. Our economic 
analysis did take into consideration ``third party'' requirements that 
may be implemented by local (State, county, or city entities) as a 
result of the designation; however, the analysis did not identify these 
requirements as significant enough to be identified as requiring 
additional review or require the areas to be excluded under section 
4(b)(2) for economic reasons.
    Comment 100: One group stated that neither current land management 
practices nor regulatory processes are in place to account for the 
decline of habitat through the reduction of understory vegetation from 
grazing and water management practices. The commenter contends that the 
Service should recognize that understory vegetation is equally 
important as overstory vegetation to suitable western yellow-billed 
cuckoo habitat. The group recommended: (1) Improving management of 
livestock; (2) listing western yellow-billed cuckoo as endangered; (3) 
prohibiting pesticide use in critical habitat units or extremely 
careful management; (4) including designated critical habitat units 
farther upstream and downstream of the proposed units; (5) including 
tributaries with the basic habitat needs; (6) working with all willing 
property owners to restore habitat to be more continuous; and (7) 
designating unoccupied areas that are strategically located along 
migratory pathways to the units.
    Our Response: In listing the western yellow-billed cuckoo under the 
Act, we took into consideration land management and regulatory 
processes that are already in place and that may protect its status, 
and we determined that the species may become endangered in the 
foreseeable future as a threatened species without measure to alleviate 
the species' threats. In our revised proposed rule, we identified both 
overstory and understory habitat structure and components as physical 
or biological features for the species. We based our designation on our 
conservation strategy and developed specific designation criteria to 
identify those areas essential to the conservation of the species as 
critical habitat. The extent of the units and whether to identify 
unoccupied units were part of our analysis in considering which areas 
meet the definition of essential for the western yellow-billed cuckoo. 
The amount and extent of the designation and limitation to occupied 
breeding areas are appropriate and supported by our rationale for 
determining critical habitat for the species (see Criteria Used To 
Identify Critical Habitat (Conservation Strategy).
    Comment 101: One private company commented that while it recognizes 
that consultation would be required if a transmission line was rebuilt, 
ongoing operations and maintenance of preexisting lines (rights-of-way 
areas) should be included in the baseline analysis. The company 
requested that American Falls Reservoir not be subject to consultation 
requirements, because the reservoir has been in operation since 1927 
and the effects of the action are ongoing.
    Our Response: Rights-of-way are agreements that impose a status on 
the use of lands rather than describing the condition of the land as 
humanmade structures. Because actions taking place within rights-of-way 
areas may impact the habitat conditions for the western yellow-billed 
cuckoo, consultation with the Service may be required. In the 
Application of the ``Adverse Modification'' Standard section, we 
address that existing water management operations in place on riverine 
segments identified as critical habitat, unless modified subsequent to 
this revised designation, are unlikely to have any discernible effect 
on the quantity, quality, or value of the PBFs of the area identified 
as critical habitat. That is, when evaluating the effects on critical 
habitat, the Service considers mandated water management operations 
within the designated units that are not within the agencies' 
discretion to modify to be part of the baseline. See also our response 
to Comments 7 and 56 regarding rights-of-way.
    Comment 102: One commenter stated in 2014 that the Service appears 
to be acting on insufficient knowledge of which areas within Unit 52 
(now Unit 37: NM-6A and NM-6B) are occupied by the western yellow-
billed cuckoo, and proposes that further studies are necessary to 
determine which specific sites are appropriate for designation 
according to the comparative benefits criteria spelled out for 
determining exclusion under section 4(b)(2) of the Act.
    Our Response: Since 2014, formal protocol surveys have been 
completed in the area of this Unit that is now designated as critical 
habitat and further support our previous conclusion that the area 
supports the occupancy of western yellow-billed cuckoos by the criteria 
specified in the Selection Criteria and Methodology Used to Determine 
Critical Habitat section of the 2020 revised proposed rule (85 FR 
11458) and this final designation.
    Comment 103: In 2014 and 2020, one commenter requested exclusion of 
the U-Bar Ranch in New Mexico based on the commenter's Management Plan, 
which provides conservation to the western yellow-billed cuckoo and its 
habitat.
    Our Response: The Service commends the longstanding monitoring and 
restoration efforts specifically along the U-Bar Ranch that have been 
undertaken by the landowner. We have conducted an exclusion analysis 
and have excluded U-Bar Ranch lands from this final designation. See 
Exclusions Private or Other Non-Federal Conservation Plans or 
Agreements and Partnerships, in General.
    Comment 104: One commenter expressed its support for efficient 
Federal water and power projects and would like the Service to further 
clarify the riparian areas that were included or combined into a single 
larger critical habitat unit (as described in 85 FR 11465). The 
commenter also commented that the commenter would like existing and 
future power lines within western yellow-billed cuckoo critical habitat 
to be excluded from the final critical habitat designation.
    Our Response: As described in our revised proposed rule (85 FR 
11465), the areas of habitat that were included or combined into a 
single larger unit depended on the extent of use of the areas by 
western yellow-billed cuckoo, the relative amount of habitat gained if 
the multiple patches were included or combined, the relationship of the 
area to the overall designation, and the ease or complexity of removing 
all nonhabitat from the designation. Also western yellow-billed cuckoo 
habitat in ideal conditions is dynamic and requires areas for regrowth. 
By including some open areas, we take into consideration this 
opportunity for natural regrowth of habitat. The suitability of 
individual patches within a unit may vary over time as far as abundance 
of occupancy or amount of PBFs present and would need to be evaluated 
on a case-by-case basis and would adjust over time.
    In the event that powerline construction and/or maintenance result 
in adverse effects to the species and/or critical habitat, consultation 
with the Service is expected to occur to provide exemptions to the 
prohibitions of section 9 in the Act. As noted above, our Policy on 
Exclusions outlines the procedures we follow for considering and 
conducting exclusions (81 FR 7226). In this case, the commenter 
provided general statements of its desire for rights-of-way to be 
excluded but did not provide any additional information or a reasoned 
rationale that would

[[Page 20825]]

support the request for exclusion. In addition, any hardened structures 
(such as buildings, aqueducts, runways, roads, bridges, and other paved 
or hardened areas as a result of development) and the land on which 
they are located is not considered to be critical habitat. Accordingly, 
the transmission towers are already not part of the designation. 
However, the rights-of-way associated with the power transmission lines 
may contain vegetation and habitat containing the physical or 
biological features essential to the conservation of the western 
yellow-billed cuckoo. Because no additional information was provided to 
support the request for exclusion, these areas are not excluded from 
the designation.
    Comment 105: Several commenters stated that there are already 
conservation plans and strategies as well as habitat protections for 
other federally listed species overlapping with the revised proposed 
critical habitat unit(s). In addition, they state that critical habitat 
is already designated for other species (such as the southwestern 
willow flycatcher) that fundamentally have the same habitat 
requirements (PBFs) as the western yellow-billed cuckoo. Therefore, in 
the view of these commenters, designation of critical habitat for the 
western yellow-billed cuckoo is redundant and not necessary.
    Our Response: As part of the listing process, we are required to 
designate critical habitat for species listed as threatened or 
endangered under the Act. Although conservation measures may be 
implemented for other species and designated critical habitat for 
multiple species may overlap, each species' critical habitat and 
conservation requirements can be different. Critical habitat comprises 
specific areas occupied by that species and contains the physical or 
biological features that are essential to the conservation of that 
species. The focus of this designation is to identify and conserve the 
unique habitat features of the western yellow-billed cuckoo. While 
additional conservation plans and strategies for other federally listed 
species may provide benefits to western yellow-billed cuckoo and its 
habitat, we base our critical habitat designations on what is uniquely 
necessary for the western yellow-billed cuckoo and its specific habitat 
requirements. In addition, if the other species protected by any 
preexisting conservation programs were to be delisted, this could 
eliminate protections for the western yellow-billed cuckoo and its 
habitat. In some cases, such as with the western yellow-billed cuckoo 
and southwestern willow flycatcher, the areas used by the two species 
are the same and management and conservation of those areas would 
benefit both species. However, the ecological niche and certain 
physical or biological features needed by the two species are different 
such as habitat patch size and nest site selection. In addition, the 
range of the southwestern willow flycatcher does not include the entire 
breeding range of the western yellow-billed cuckoo. As a result, if we 
relied only on critical habitat for the southwestern willow flycatcher 
to provide protection for the western yellow-billed cuckoo, large areas 
of the species' breeding range would not be designated.
    Comment 106: Several commenters stated that the proposed critical 
habitat includes unsuitable, unoccupied habitat, and thus should not be 
included in our final critical habitat designation.
    Our Response: We based our designation on the best scientific and 
commercial information available including information on occupancy and 
use of areas we are considering as critical habitat. This included 
gathering, reviewing, and evaluating information from multiple sources 
including information from State wildlife agencies, State Natural 
Heritage databases, Cornell Lab of Ornithology (eBird data), 
researchers, nongovernment organizations, universities, and 
consultants, as well as information from our files. During our process 
for proposing and finalizing this designation of critical habitat, we 
used a systematic approach to assess potential critical habitat 
throughout the designation that included an analysis of habitat that 
contained the physical or biological features that are essential to the 
conservation of the species.
    Comment 107: Multiple commenters stated that oil and gas 
development will be negatively impacted by designating critical 
habitat. One commenter stated that the economic analysis fails to 
consider impacts to oil and gas development.
    Our Response: Under section 4(b)(2) of the Act, economic and social 
impacts are considered in the process for designating critical habitat 
for species listed under the Act. Our economic analysis did not find 
that oil and gas development would be significantly impacted by the 
designation of critical habitat. Executive Order 13211 (Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use) takes into account effects to oil and gas 
development that could potentially result from designating critical 
habitat. We do not expect that a critical habitat designation for the 
western yellow-billed cuckoo would significantly affect energy 
supplies, distribution, or use, because the areas identified as 
critical habitat are along riparian corridors in mostly remote areas 
with little energy supplies, distribution, or infrastructure. In areas 
where the western yellow-billed cuckoo is present, Federal agencies are 
required to consult with our agency under section 7 of the ESA on 
activities they fund, permit, or implement, which may affect the 
species. Section 7(a)(1) of the ESA charges Federal agencies to aid in 
the conservation of listed species, and section 7(a)(2) requires the 
agencies to ensure that their activities are not likely to jeopardize 
the continued existence of listed species or adversely modify 
designated critical habitats. In our economic analysis, we identified 
oil and gas development as an activity and considered the impact of 
critical habitat on those activities. Because section 7 consultation is 
already required for Federal projects that could impact western yellow-
billed cuckoo, the additional process necessary to avoid the 
destruction or adverse modification of critical habitat would be a 
minor additional step in the existing consultation process. Therefore, 
economic impacts to oil and gas development would be minimal as a 
result of this critical habitat designation.
    Comment 108: A commenter stated that western yellow-billed cuckoo 
surveys are incomplete and that some areas that should have been 
included in our proposed critical habitat designation were incorrectly 
excluded.
    Our Response: The Service is required to use the best scientific or 
commercial information available in determining critical habitat. We 
accomplish this by gathering, reviewing, and evaluating information 
from multiple sources prior to designating critical habitat. 
Information, including surveys, used for the western yellow-billed 
cuckoo critical habitat analysis was obtained from reports prepared by 
several entities including the U.S. Geological Survey (USGS), USFS, 
NPS, BLM, Reclamation, State wildlife agencies, State Natural Heritage 
databases, Cornell Lab of Ornithology (eBird data), researchers, 
nongovernmental organizations, universities, and consultants, as well 
as information from our files. Because we listed the species as 
threatened in 2014, we used information up to that point in determining 
occupancy for determining whether the areas considered as critical 
habitat would fall under section 3(5)(A)(i) as being occupied at the 
time of listing or section 3(5)(A)(ii) as being occupied after the time 
of listing. We also reviewed records subsequent to listing (2015-2019) 
to confirm

[[Page 20826]]

occupancy of the areas being designated.
    Comment 109: A commenter stated that the Service is considering 
designating western yellow-billed cuckoo critical habitat in every 
place where the species occurs, instead of limiting it to just the 
locations that are necessary for recovery.
    Our Response: We are not designating critical habitat in every 
place where the species occurs. Part of our conservation strategy and 
criteria for designating critical habitat for the western yellow-billed 
cuckoo were intended to focus the designation on breeding areas larger 
than 200 ac (81 ha) in extent. The western yellow-billed cuckoo still 
occurs in areas throughout its historical range from Texas to south-
western British Columbia, Canada. We did not designate critical habitat 
in Nevada, Oregon, or Washington or in other areas in States where, 
although there is confirmed breeding, the areas are not part of our 
conservation strategy.
    Comment 110: A commenter stated that alternate survey methods 
should have been used to identify occupied and suitable habitat for the 
western yellow-billed cuckoo.
    Our Response: We recognize that due to the reclusive nature of the 
western yellow-billed cuckoo, the remoteness of some areas it occupies, 
the difficulty in conducting surveys, and inconsistent survey 
methodology, the majority of the species' range has not been surveyed 
on a regular basis or may not have comparable survey data to give an 
absolute determination of population distribution and occupancy. 
However, despite these survey challenges, key areas throughout the 
western DPS have been surveyed more consistently and give some 
indication of persistence and site fidelity. Therefore, we based our 
analysis of occupancy on detection records starting in 1998 and ending 
in 2014, when we listed the western yellow-billed cuckoo as a 
threatened species. The 1998 to 2014 timeframe was chosen because it 
includes the last statewide western yellow-billed cuckoo surveys in 
areas where the majority of individuals within the DPS's range occurs 
and represents the best available information on long-term occupancy. 
For the 2020 revised proposed rule, we proposed additional units we 
consider to have been occupied at the time of listing using new data 
received through the 2017 breeding season. To further support 
designation of these units, we used additional occupancy or nesting 
data up until the 2020 breeding season.
    Comment 111: A commenter stated that HCPs should not be used to 
exclude areas from critical habitat designation for the western yellow-
billed cuckoo.
    Our Response: HCPs are typically required as part of an application 
for an incidental take permit through section 10 of the Act for actions 
that would occur on private lands and would impact federally listed 
species. We conduct internal section 7 consultation on issuance of the 
incidental take permit under section 10. These plans must include how 
impacts would be minimized or mitigated to the maximum extent 
practicable, and therefore provide a level of protection for listed 
species. In excluding HCPs, we conduct a balancing analysis and compare 
the benefits of excluding areas verses the benefits of including areas 
as critical habitat. For exclusions under section 4(b)(2) of the Act, 
the Secretary has broad discretion on excluding areas from critical 
habitat. See Exclusions Private or Other Non-Federal Conservation Plans 
Related to Permits Under Section 10 of the Act for a discussion of the 
HCPs being excluded and the balancing analysis as well as our rationale 
for exclusions.
    Comment 112: One commenter stated that we should exclude areas that 
are managed by Federal agencies from critical habitat designation for 
western yellow-billed cuckoo.
    Our Response: Federal agencies are required to conserve endangered 
and threatened species and utilize their authorities to further the 
purposes of the Act. Critical habitat is a mechanism under the Act that 
requires that actions that Federal agencies conduct, permit, or fund 
not adversely modify the areas identified as critical habitat for an 
endangered or threatened species. As a result, Federal agencies are in 
a position to uniquely contribute to sensitive species management and 
conservation. Wholesale exclusion of Federal lands or areas managed by 
Federal agencies would remove the intended conservation components 
intended under the Act. However, under section 4(b)(2) of the Act, the 
Secretary may exclude Federal lands in certain circumstances from 
designation if the benefits of exclusion outweigh the benefits of 
inclusion and exclusion will not lead to the species extinction. As 
noted above, consideration of possible exclusions from critical habitat 
are in the Service's discretion, but we have indicated that a proponent 
should provide information or a reasoned rationale (81 FR 7226) and we 
specifically solicited such information in our revised proposed 
designation of critical habitat for the western yellow-billed cuckoo 
(85 FR at 11502) In this case, the commenter has not provided 
information to support the requested exclusion. Although we have 
excluded some Federal lands from the designation, we find that 
excluding all Federal lands from the designation for the western 
yellow-billed cuckoo is not appropriate.
    Comment 113: Several commenters claim that the Service did not 
adequately consider economic impacts as a result of designating 
critical habitat for the western yellow-billed cuckoo, and another 
commenter stated that agricultural operations will be negatively 
impacted by designating critical habitat for the western yellow-billed 
cuckoo.
    Our Response: We developed an economic analysis of the incremental 
effects of designating critical habitat and made the document 
available, along with our analysis and findings, in connection with 
publishing our proposed rule and revised proposed rule (see IEc 2019 
entire; IEc 2020, entire). Our analysis took into consideration those 
activities within the critical habitat areas. The commenter did not 
provide alternative information or data to suggest our economic 
analysis and review was insufficient but point to costs that may be 
part of the species' listing and not to those actions solely as a 
result of the designation of critical habitat.
    When we mapped the boundaries for the proposed critical habitat, we 
avoided identifying agricultural lands within the proposed designation 
because these lands generally do not provide the physical or biological 
features that are essential to the conservation of the western yellow-
billed cuckoo. In addition, any agricultural lands included within the 
boundary of the proposed designation would likely not be considered 
critical habitat because these lands do not contain the physical or 
biological features necessary for yellow-billed cuckoo habitat. In our 
evaluation of the economic impacts that may result from the proposed 
designation of critical habitat for the western yellow-billed cuckoo 
(IEc 2019, entire; IEc 2020, entire), we identified probable 
incremental economic impacts associated with agriculture and found that 
the critical habitat designation for the western yellow-billed cuckoo 
would not significantly affect agricultural operations.
    Comment 114: Multiple commenters requested that the economic 
analysis follow the Tenth Circuit's requirement to adopt a 
``cumulative'' or ``co-extensive'' approach to quantifying impacts.

[[Page 20827]]

    Our Response: Because the primary purpose of the economic analysis 
is to facilitate the mandatory consideration of the economic impact of 
the designation of critical habitat, to inform the discretionary 
section 4(b)(2) exclusion analysis, and to determine compliance with 
relevant statutes and Executive orders, the economic analysis should 
focus on the incremental impact of the designation. The economic 
analysis of the designation of critical habitat for the western yellow-
billed cuckoo follows this approach.
    The Service acknowledges that significant debate has occurred 
regarding whether assessing the impact of critical habitat designations 
using the incremental approach is appropriate, with several courts 
issuing divergent opinions. Most recently, the Ninth Circuit concluded 
that the incremental approach is appropriate (Home Builders Association 
of Northern California v. United States Fish and Wildlife Service, 616 
F.3d 983 (9th Cir. 2010); Arizona Cattle Growers v. Salazar, 606 F.3d 
1160 (9th Cir. 2010)). Subsequently, on August 28, 2013, the Service 
revised its approach to conducting impact analyses for designations of 
critical habitat, specifying that the incremental approach should be 
used (78 FR 53062).
    Comment 115: One commenter stated that the economic analysis for 
this action should not use the economic analysis for the designation of 
critical habitat for the southwestern willow flycatcher as the basis 
for its estimates. The commenter stated that the southwestern willow 
flycatcher analysis failed to include significant cost elements, 
including registration of pesticides under the Federal Insecticide, 
Fungicide, and Rodenticide Act (FIFRA) and costs to water management 
and use.
    Our Response: The revised screening analysis for the proposed 
critical habitat designation does not use the costs projected in the 
southwestern willow flycatcher economic analysis to inform its 
estimated costs. Instead, the economic analysis for the western yellow-
billed cuckoo relies on the consultation history for the western 
yellow-billed cuckoo since its listing as a threatened species in 2014, 
compiled from the Service's Tracking and Integrated Logging System 
(TAILS) database. Reference to the southwestern willow flycatcher is 
made simply with regard to identifying existing baseline regulatory 
protections that overlap the geographic areas proposed for designation 
in this rulemaking.
    Comment 116: Multiple commenters expressed concern that the 
economic analysis generally understates the direct, indirect, and 
induced costs; regulatory delays; and other economic effects expected 
to result from the designation of critical habitat.
    Our Response: These comments do not identify specific data sources 
or assumptions used in the economic analysis that may be inaccurate. 
The comments also do not provide new information that could be used to 
revise the economic analysis. Section 3 of the economic analysis 
outlines the substantial baseline protections currently afforded the 
western yellow-billed cuckoo throughout the proposed designation. These 
baseline protections result from the listing of the western yellow-
billed cuckoo under the Act and the presence of the species in all 
proposed critical habitat units, as well as overlap with habitat of 
other, similar listed species and designated critical habitat. As a 
result of these protections, the economic analysis concludes that 
incremental impacts associated with section 7 consultations for the 
western yellow-billed cuckoo are likely limited to additional 
administrative effort. The analysis forecasts future section 7 
consultation activity based on consultations for the western yellow-
billed cuckoo that have occurred since its listing in 2014. Using these 
historical consultation rates and applying estimated consultation costs 
presented in Exhibit 3 of the analysis, we expect that the additional 
administrative costs incurred by critical habitat designation will not 
exceed $74,000 in a given year.
    Comment 117: Multiple commenters objected to the screening approach 
applied in the economic analysis. In particular, one commenter noted 
that the proposed critical habitat would span nine geographically 
diverse States, and requested that the Service consider impacts to each 
local economy separately rather than grouping these diverse regions 
into a single analysis.
    Our Response: The primary purpose of the economic analysis is to 
facilitate the mandatory consideration of the economic impact of the 
designation of critical habitat, to inform the discretionary section 
4(b)(2) exclusion analysis, and to determine compliance with relevant 
statutes and Executive orders. To support these considerations, the 
economic analysis estimates costs at the level of individual critical 
habitat units (see Exhibit A-2). The magnitude of anticipated 
incremental section 7 costs, based on historical consultation data for 
the western yellow-billed cuckoo following its listing in 2014, is 
unlikely to exceed $74,000 in a given year. These costs are likely to 
be small relative to the economies of the communities, and the majority 
of these costs are borne by the Service and Federal action agencies.
    Comment 118: One commenter expressed concern about the assumption 
used in the economic analysis that incremental effects will be minimal 
in areas currently protected for the endangered southwestern willow 
flycatcher. The commenter noted that, if the southwestern willow 
flycatcher recovers before the western yellow-billed cuckoo, those 
protections would disappear. For this reason, the commenter requested 
that the Service not exclude areas from the final designation of 
critical habitat for the western yellow-billed cuckoo based on the 
presence of protections for the southwestern willow flycatcher.
    Our Response: Section 3 of the economic analysis describes several 
baseline protections afforded the western yellow-billed cuckoo in 
support of the conclusion that incremental costs associated with 
section 7 consultations are likely limited to administrative costs. Of 
these baseline protections, the primary protection is the concurrent 
listing of the western yellow-billed cuckoo under the Act. Because all 
proposed critical habitat units for the western yellow-billed cuckoo 
are considered occupied by the species, all projects with a Federal 
nexus will be subject to section 7 requirements regardless of whether 
critical habitat is designated. In addition, we expect that, except in 
cases that cannot be predicted at this time, project modifications 
recommended to avoid adverse modification of western yellow-billed 
cuckoo habitat will be the same as those needed to avoid jeopardy to 
the species. As a result, the section 7-related costs of designating 
critical habitat for the western yellow-billed cuckoo are likely to be 
limited to additional administrative effort to consider adverse 
modification in consultation. This conclusion would not change if the 
protections currently afforded the southwestern willow flycatcher were 
removed due to recovery of the southwestern willow flycatcher. Although 
the specific habitat characteristics and ecological niche occupied by 
the southwestern willow flycatcher and western yellow-billed cuckoo are 
different, implementing conservation actions in the areas where they 
co-occur can be managed together. Numerous plans are in place for the 
southwestern willow flycatcher because of its earlier listing (1995) 
compared with the listing of the western yellow-billed cuckoo (2014). 
We have been working with entities with southwestern willow flycatcher 
management plans to update their plans to specifically

[[Page 20828]]

include the western yellow-billed cuckoo. Should the southwestern 
willow flycatcher be delisted, we are certain that individuals with 
southwestern willow flycatcher management plans would continue to 
provide conservation for the western yellow-billed cuckoo and excluding 
these areas would most likely further incentivize these efforts.
    Comment 119: One commenter questioned the per-consultation 
incremental administrative costs used in the economic analysis. The 
commenter suggested that the economic analysis determine administrative 
costs on a project-by-project basis.
    Our Response: The economic analysis relies on the best available 
information on administrative costs. The costs presented in Exhibit 3 
of the economic analysis were developed based on data gathered from 
three Service field offices (including a review of consultation records 
and interviews with field office staff); telephone interviews with 
action agency staff (e.g., BLM, USFS, Corps); and telephone interviews 
with private consultants who perform work in support of permittees. In 
the case of Service and Federal agency contacts, we determined the 
typical level of effort required to complete several different types of 
consultations (i.e., hours or days of time), as well as the typical 
Government Service (GS) level of the staff member performing this work. 
In the case of private consultants, we interviewed representatives of 
consulting firms to determine the typical cost charged to clients for 
these efforts (e.g., biological survey, preparation of materials to 
support a Biological Assessment). The model is periodically updated 
with new information received in the course of data collection efforts 
supporting economic analyses and public comment on more recent critical 
habitat rules. In addition, the GS rates are updated annually. The 
economic analysis relies on this cost model because estimating 
incremental administrative costs on a project-by-project basis would 
require the collection of a significant amount of new data that is 
beyond the scope of the analysis.
    Comment 120: One commenter cited a 2003 article by Dr. David 
Sunding estimating that total economic losses from critical habitat 
designations could reach $1 million per acre of habitat conserved.
    Our Response: This impact estimate comes from a stylized example, 
using a hypothetical scenario, included in the article to demonstrate 
the types of costs that might result from critical habitat 
designations. The example assumes a 1,000-unit housing development is 
planned and that critical habitat requires land set-asides, reducing 
the total number of homes that can be built to 900. It uses 
hypothetical data about the value of those homes and resulting changes 
in prices to estimate impacts. Aside from the fact that this example is 
based on stylized information, rather than actual data, the conditions 
of the example are not relevant to the western yellow-billed cuckoo. As 
described in the economic analysis, land set-asides required through 
section 7 consultation or as a result of the implementation of State 
laws are unlikely to result solely from the designation of critical 
habitat, given the western yellow-billed cuckoo's status as a listed 
species and the presence of other listed species and critical habitat 
designations.
    Comment 121: Multiple commenters stated that a regulatory 
flexibility analysis is required. One commenter expressed particular 
concern that the proposed designation will affect operations on farms 
and ranches in the State of New Mexico. The commenter noted that these 
farms and ranches are typically run by families and are, therefore, 
small businesses.
    Our Response: Under the Regulatory Flexibility Act, Federal 
agencies are required to evaluate only the potential incremental 
impacts of a rulemaking on directly regulated entities. The regulatory 
mechanism through which critical habitat protections are realized is 
section 7 of the Act, which requires Federal agencies, in consultation 
with the Service, to ensure that any action authorized, funded, or 
carried by the Agency is not likely to adversely modify critical 
habitat. Therefore, only Federal action agencies are directly subject 
to the specific regulatory requirement (avoiding destruction and 
adverse modification) imposed by critical habitat designation; family 
farms and ranches are not Federal action agencies and thus are not 
directly regulated by this designation. Under these circumstances, it 
is the Service's position that only Federal action agencies will be 
directly regulated by this designation. Therefore, because Federal 
agencies are not small entities, the Service certifies that the 
proposed critical habitat rule will not have a significant economic 
impact on a substantial number of small entities (see Required 
Determinations).
    Comment 122: One commenter stated that the economic analysis 
misinterprets Executive Order 12866. The commenter noted that under 
Executive Order 12866, a significant regulatory action is one that may 
``have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities.'' The commenter stated that meeting either of these 
criteria can deem an action significant. The commenter then requests 
that, as a result of the magnitude of possible impacts of public 
perception described in the economic analysis, this rulemaking be 
considered a significant action.
    Our Response: The revised proposed rule and this final designation 
was identified by the Office of Information and Regulatory Affairs 
(OIRA) to be a significant regulatory action (see Required 
Determinations). However, we have determined that the economic costs of 
designating critical habitat for the western yellow-billed cuckoo are 
likely to be limited to additional administrative effort to consider 
adverse modification in consultation, and are unlikely to exceed 
$74,000 in a given year. In addition, the analysis recognizes that the 
designation of critical habitat may cause developers or landowners to 
perceive that private lands will be subject to use restrictions or 
litigation from third parties, resulting in costs. Data limitations 
prevent the quantification of the possible incremental reduction in 
property values. However, data on current land values suggest that even 
if such costs occur, the rule is unlikely to meet the threshold for an 
economically significant rule, with regard to costs, under E.O. 12866. 
In sum, the economic analysis finds that the combined total of section 
7 and possible perception-related effects is unlikely to exceed the 
threshold for an economically significant rulemaking, as specified by 
E.O. 12866.
    Comment 123: One commenter stated that the Service should supply a 
Statement of Energy Effects due to the potential for critical habitat 
designation to affect permitting, operations, and maintenance of 
facilities such as the Hayden Power Plant, the Craig Power Plant, and 
other electric transmission facilities.
    Our Response: Executive Order 13211 (Actions Concerning Regulations 
That Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. The U.S. Office of Management and Budget (OMB) has 
provided guidance for implementing this Executive order that outlines 
nine outcomes that may constitute ``a significant adverse effect'' when 
compared to not taking the

[[Page 20829]]

regulatory action under consideration. See OMB Memorandum 01-27, 
Guidance for Implementing E.O. 13211 (July 13, 2001) (M-01-27), https://www.whitehouse.gov/wp-content/uploads/2017/11/2001-M-01-27-Guidance-for-Implementing-E.O.-13211.pdf. These outcomes include, for example, 
reductions in electricity production in excess of 1 billion kilowatt-
hours per year or in excess of 500 megawatts of installed capacity, or 
increases in the cost of energy production or distribution in excess of 
one percent. The economic analysis finds that the incremental costs of 
designating critical habitat for the western yellow-billed cuckoo are 
likely to be limited to additional administrative effort to consider 
adverse modification in consultation. Although some energy facilities, 
such as those identified by the commenter, are located within the 
vicinity of the proposed designation, the proposed critical habitat is 
predominantly in remote areas with little energy supply infrastructure. 
The types of incremental administrative costs described in the economic 
analysis are therefore unlikely to result in the types of outcomes 
described by OMB in Executive Order 13211.
    Comment 124: One commenter stated that the economic analysis does 
not satisfy the requirements of President Obama's February 2012 
memorandum to the Secretary of the Interior (Presidential Memorandum 
for the Secretary of the Interior--Proposed Revised Habitat for the 
Spotted Owl: Minimizing Regulatory Burdens (February 28, 2012)).
    Our Response: The President's memorandum primarily provided 
direction specific to the consideration of economic impacts related to 
the designation of critical habitat for the northern spotted owl. 
However, it also directed the Service to take prompt steps to revise 
its regulations such that the economic analysis would be completed and 
made available for public comment at the time of publication of the 
proposed rule to designate critical habitat. The Service issued a final 
rule revising these regulations, as requested by the President, on 
August 28, 2013 (78 FR 53058). For the western yellow-billed cuckoo, 
the incremental effects memorandum and screening analysis 
(collectively, the ``economic analysis'') were made available for 
public comment at the time of the proposed critical habitat rule.
    Comment 125: Multiple commenters expressed concern that the 
economic analysis does not sufficiently address the potential benefits 
of the designation of critical habitat. These commenters stated that 
the benefits of critical habitat must be weighed against the economic 
costs of the designation. One commenter estimated that wildlife 
watchers contribute $24 million per year to the local economy along the 
San Pedro River in Arizona, and another commenter cited a survey 
showing that the total economic effect associated with wildlife-
watching activities in 2011 was $1.4 billion.
    Our Response: Section 5 of the economic analysis explains that the 
primary intended benefit of critical habitat designation for the 
western yellow-billed cuckoo is to support the species' long-term 
conservation. Critical habitat designation may also generate ancillary 
benefits by protecting the primary constituent elements on which the 
species depends. As a result, management actions undertaken to conserve 
the species or its habitat may have coincident, positive social welfare 
implications, such as increased recreational opportunities in a region 
or improved property values on nearby parcels.
    As described in section 3 of the economic analysis, incremental 
changes in land management are unlikely to result from the designation 
of critical habitat. Furthermore, all of the proposed critical habitat 
is considered to be occupied by the species, thus the listing of the 
species also serves as encouragement for wildlife watchers to visit 
these areas. Therefore, in this instance, critical habitat designation 
is unlikely to incrementally affect the types of ancillary benefits 
described by the commenters.
    Comment 126: Multiple commenters were concerned that the 
designation may negatively affect residential and commercial 
development or otherwise create economic uncertainty on private lands. 
For example, several commenters stated that the economic analysis 
should consider potential costs associated with the inability of 
private property owners to use or sell land on which critical habitat 
is designated. According to one commenter, development projects that 
receive Federal funding or otherwise have a Federal nexus for 
consultation could be delayed or cancelled. The commenter is 
specifically concerned about impacts in five units of non-Federal, 
private land included in the proposed designation. Other commenters 
noted the importance of trust land sales and property tax revenue for 
funding vital services such as public education, urban and wildland 
firefighting, health services, road maintenance, emergency medical 
services, and police protection. In particular, one commenter requested 
that the economic analysis disaggregate costs to taxable lands and non-
taxable lands owned by local governments.
    Our Response: Section 7 of the Act does not prohibit the use or 
sale of land designated as critical habitat. If, during section 7 
consultation, the Service finds that the proposed action is likely to 
adversely modify critical habitat, Federal regulation and the Section 7 
Consultation Handbook encourage the Service to identify reasonable and 
prudent alternatives that can be implemented in a manner consistent 
with the intended purpose of the action and that are economically and 
technically feasible (see 50 CFR 402.14(h)(3) and p. xxii of the 
Section 7 Consultation Handbook, respectively).
    As described in the economic analysis, the designation of critical 
habitat may cause developers or landowners to perceive that private 
lands will be subject to use restrictions or litigation from third 
parties, resulting in costs. Data limitations prevent the 
quantification of the possible incremental reduction in property 
values. However, data on current land values suggest that even if such 
costs occur, the rule is unlikely to meet the threshold for an 
economically significant rule, with regard to costs, under E.O. 12866.
    Comment 127: One commenter noted that many development activities 
and extractive uses that occur on private lands require Clean Water Act 
permits and could therefore be subject to section 7 consultation for 
the western yellow-billed cuckoo.
    Our Response: The Clean Water Act requires the Army Corps of 
Engineers to issue permits for certain activities, and thus the Corps 
may serve as a Federal nexus for many activities occurring in western 
yellow-billed cuckoo critical habitat. The economic analysis considers 
the likelihood that activities on private lands may require Corps 
permits in the development of its cost estimates. It uses the actual, 
historical consultation rate for the western yellow-billed cuckoo since 
its listing in 2014, which includes consultations on projects permitted 
by the Corps.
    Comment 128: Multiple commenters expressed concern about economic 
impacts resulting from restrictions on operations at Lake Isabella. 
According to one commenter, Lake Isabella provides over $38 million 
annually in economic benefits related to flood risk management, 
irrigation, hydropower, and recreation. Another commenter provided a 
supplemental analysis of economic impacts related to storage 
restrictions at Lake Isabella. This

[[Page 20830]]

commenter stated that storage restrictions similar to those temporarily 
implemented for the benefit of the southwestern willow flycatcher would 
result in net economic losses of $5.4 million to $14.7 million annually 
over the next 20 years. Another commenter estimated up to a 50 percent 
reduction in use of the U.S. Forest Service's nearby recreation sites, 
including 10 developed recreation sites, 3 marinas, and 7 boat 
launches, if the spillway height at Lake Isabella is not able to be 
maintained.
    Our Response: The areas associated Lake Isabella and reservoir 
operations (reservoir area, flood easement areas) were either not 
designated or floodplain areas removed from the designation (see 
Comment 4). As a result, we do not anticipate requesting modifications 
to reservoir operations due to the designation of critical habitat for 
the western yellow-billed cuckoo and provided our analysis that current 
spillway construction activities would not likely impact the species or 
require additional conservation. Section 3 of the economic analysis 
outlines the substantial baseline protections currently afforded the 
western yellow-billed cuckoo throughout the proposed designation. These 
baseline protections result from the listing of the western yellow-
billed cuckoo under the Act and the presence of the species in all 
proposed critical habitat units, as well as overlap with habitat of 
other, similar listed species and designated critical habitat. As a 
result of these protections, the economic analysis concludes that 
incremental impacts associated with section 7 consultations for the 
western yellow-billed cuckoo are likely limited to additional 
administrative effort.
    Comment 129: Multiple commenters expressed concern that the 
designation could adversely affect flood control activities. Commenters 
stated that restrictions to farmers' ability to manage levee vegetation 
and drainage operations may hinder flood control, resulting in economic 
and public safety impacts. One commenter notes that the Army Corps of 
Engineers represents a likely nexus for these activities.
    Our Response: We do not anticipate that flood control operations or 
management and maintenance of existing flood control facilities and 
levees would be significantly impacted by designation of critical 
habitat. Areas that have flood and erosion control structures such as 
levees and other hardened features in place would not contain the 
physical or biological features and have been textually excluded from 
being considered as critical habitat. In addition, emergency actions to 
avoid flooding or other uncontrolled circumstances that may cause loss 
of life or property are allowed according to the emergency consultation 
procedures identified under section 7 of the Act. Section 3 of the 
economic analysis outlines the substantial baseline protections 
currently afforded the western yellow-billed cuckoo throughout the 
proposed designation. These baseline protections result from the 
listing of the western yellow-billed cuckoo under the Act and the 
presence of the species in all proposed critical habitat units, as well 
as overlap with habitat of other, similar listed species and designated 
critical habitat. As a result of these protections, the economic 
analysis concludes that incremental impacts associated with section 7 
consultations for the western yellow-billed cuckoo are likely limited 
to additional administrative effort.
    Comment 130: Multiple commenters expressed concern about the 
potential impacts of the designation of critical habitat on water 
management and water rights. Commenters noted specific concerns 
regarding the following impacts and their costs: Reallocation of water 
rights; restrictions on the use of unadjudicated water; restrictions on 
river management and reservoir operations; restrictions on river and 
habitat restoration projects; restrictions on drainage operations; and 
the implications of such restrictions for local water supply and local 
economies.
    Our Response: As discussed under the Application of the ``Adverse 
Modification'' Standard below, we consider ongoing water management 
operations that are not within the agency's discretion to modify to be 
part of the baseline. All areas identified as critical habitat where 
ongoing water operations exist contain the physical or biological 
features necessary to provide for the essential habitat needs of the 
western yellow-billed cuckoo; therefore, we do not anticipate that the 
continuation of existing water management operations would appreciably 
diminish the value or quality of the critical habitat where they occur 
and therefore ongoing water operations would not be significantly 
modified as a result of the designation. Section 3 of the economic 
analysis outlines the substantial baseline protections currently 
afforded the western yellow-billed cuckoo throughout the proposed 
designation. These baseline protections result from the listing of the 
western yellow-billed cuckoo under the Act and the presence of the 
species in all proposed critical habitat units, as well as overlap with 
habitat of other, similar listed species and designated critical 
habitat. As a result of these protections, the economic analysis 
concludes that incremental impacts associated with section 7 
consultations for the western yellow-billed cuckoo are likely limited 
to additional administrative effort.
    Comment 131: Multiple commenters expressed concern that the 
economic analysis did not sufficiently evaluate potential impacts to 
livestock grazing and agricultural activities. Several commenters 
requested that the economic analysis explicitly consider impacts to 
agricultural operations (including water use and use of pesticides), 
particularly those that receive NRCS cost-share grants for projects 
such as bank stabilization, irrigation, fencing, grazing management, 
and weed control. The commenters expressed concern that the designation 
of critical habitat could lead to a reduction in grazing or 
agricultural output, or a reduction in the number of NRCS projects 
undertaken. These impacts could, in turn, affect local ranching 
communities and farm income.
    Our Response: The Service does not anticipate requesting additional 
modifications for livestock grazing or agricultural operations, or 
cost-share projects undertaken with agencies such as NRCS, as a result 
of the designation of critical habitat for the western yellow-billed 
cuckoo. Section 3 of the economic analysis outlines the substantial 
baseline protections currently afforded the western yellow-billed 
cuckoo throughout the proposed designation. These baseline protections 
result from the listing of the western yellow-billed cuckoo under the 
Act and the presence of the species in all proposed critical habitat 
units, as well as overlap with habitat of other, similar listed species 
and designated critical habitat. As a result of these protections, the 
economic analysis concludes that incremental impacts associated with 
section 7 consultations for the western yellow-billed cuckoo are likely 
limited to additional administrative effort.
    However, the Service recognizes the potential for landowners' 
perceptions of the Act to influence land use decisions, including 
decisions to participate in Federal programs such as those managed by 
NRCS. Several factors can influence the magnitude of perception-related 
effects, including the community's experience with the Act and 
understanding of the degree to which future section 7 consultations 
could delay or affect land use activities. Information is not available 
to predict the impact of the designation of critical habitat on 
landowners' decisions to pursue cost-share projects with NRCS in

[[Page 20831]]

the future. However, incremental effects due to the designation of 
critical habitat for the western yellow-billed cuckoo are likely to be 
reduced due to the species being listed.
    Comment 132: Multiple commenters expressed concern that the 
designation of critical habitat for the western yellow-billed cuckoo 
could affect agricultural operations through restrictions on the use of 
irrigation facilities or pesticides, particularly those registered 
under FIFRA.
    Our Response: The Service does not anticipate requesting additional 
modifications for agricultural operations, including irrigation or 
pesticide use, as a result of the designation of critical habitat for 
the western yellow-billed cuckoo. Section 3 of the economic analysis 
outlines the substantial baseline protections currently afforded the 
western yellow-billed cuckoo throughout the proposed designation. These 
baseline protections result from the listing of the western yellow-
billed cuckoo under the Act and the presence of the species in all 
proposed critical habitat units, as well as overlap with habitat of 
other, similar listed species and designated critical habitat. As a 
result of these protections, the economic analysis concludes that 
incremental impacts associated with section 7 consultations for the 
western yellow-billed cuckoo are likely limited to additional 
administrative effort.
    Comment 133: Multiple commenters expressed concern that the 
designation of critical habitat could negatively affect mining 
activities, including gravel pit operations and copper mining in 
Arizona.
    Our Response: Because the western yellow-billed cuckoo is listed as 
threatened and all the units are occupied during the breeding season 
and habitat would need to be protected during the nonbreeding season, 
the majority of actions necessary to conserve the species would be 
required based on the listing of the western yellow-billed cuckoo. As a 
result of the species being listed, the economic analysis concludes 
that incremental impacts of critical habitat associated with section 7 
consultations for mining operations for the western yellow-billed 
cuckoo are likely limited to additional administrative effort of 
determining if adverse modification may occur. Because the commenters 
were making general statements and not specific to individual mining 
projects or actions, we are unable to determine what measures mining 
interests may need to undertake to avoid adverse modification if 
necessary.
    Comment 134: Multiple commenters expressed concern about impacts to 
recreational activities and facilities, such as parks. In particular, 
one commenter expressed concern that the designation could limit access 
to public lands. Other commenters expressed concern that the 
designation could limit water use, which would affect recreation. 
Another commenter stated that increased Federal oversight could hinder 
efforts to properly manage and maintain public safety at local parks. 
Another commenter expressed concern that the designation could restrict 
future trail developments.
    Our Response: Because the western yellow-billed cuckoo is listed as 
threatened, all the units are occupied during the breeding season and 
habitat would need to be protected during the nonbreeding season, the 
majority of actions necessary to conserve the species would be required 
based on the listing of the western yellow-billed cuckoo. Exhibit A-1 
of the economic analysis, which displays the planned projects assumed 
by the economic analysis to require formal consultation, includes 
multiple consultations for recreational activities. Activities at 
private or municipal recreational facilities, such as town parks, will 
only require section 7 consultation if those activities have a Federal 
nexus, such as Federal funding.
    For activities that do have a Federal nexus for section 7 
consultation, the Service does not anticipate conservation measures 
above and beyond those needed for conserving the listed western yellow-
billed cuckoo. Section 3 of the economic analysis outlines the 
substantial baseline protections currently afforded the western yellow-
billed cuckoo throughout the proposed designation. These baseline 
protections result from the listing of the western yellow-billed cuckoo 
under the Act and the presence of the species in all proposed critical 
habitat units, as well as overlap with habitat of other, similar listed 
species and designated critical habitat. As a result of these 
protections, the economic analysis concludes that incremental impacts 
associated with section 7 consultations for the western yellow-billed 
cuckoo are likely limited to additional administrative effort.
    Comment 135: Multiple commenters expressed concern that the 
designation of critical habitat could negatively affect transportation 
activities and road infrastructure. One commenter further noted that 
road maintenance is necessary to maintain access to public and private 
lands; as a result, impacts stemming from the designation of critical 
habitat have the potential to severely limit public access to public 
lands.
    Our Response: Because the western yellow-billed cuckoo is listed as 
threatened, and all the units are occupied during the breeding season 
and habitat would need to be protected during the nonbreeding season, 
the majority of actions necessary to conserve the species would be 
required based on the listing of the western yellow-billed cuckoo. For 
activities that do have a Federal nexus for section 7 consultation, the 
Service does not anticipate conservation measures above and beyond 
those needed for conserving the listed western yellow-billed cuckoo. 
Section 3 of the economic analysis outlines the substantial baseline 
protections currently afforded the western yellow-billed cuckoo 
throughout the proposed designation. These baseline protections result 
from the listing of the western yellow-billed cuckoo under the Act and 
the presence of the species in all proposed critical habitat units, as 
well as overlap with habitat of other, similar listed species and 
designated critical habitat. As a result of these protections, the 
economic analysis concludes that incremental impacts associated with 
section 7 consultations for the western yellow-billed cuckoo are likely 
limited to additional administrative effort.
    Comment 136: Multiple commenters expressed concern about economic 
impacts to operations on military installations. In particular, one 
commenter expressed concern that the designation could result in the 
closure or restriction of operations on two military installations near 
Yuma, Arizona. Multiple commenters expressed concern about impacts to 
Fort Huachuca in Cochise County, Arizona, noting that Fort Huachuca has 
an approved integrated natural resources management plan (INRMP) that 
provides conservation benefit to the western yellow-billed cuckoo. 
Another commenter expressed particular concern that the designation 
could affect operations on Fort Huachuca's Buffalo Soldier Electronic 
Testing Range.
    Our Response: No military lands or training areas were included in 
the revised proposed rule or are included in this final designation. In 
the timeframe between the proposed rule and this final designation, we 
had discussions with the military installations at Yuma Proving Grounds 
and Fort Huachuca regarding the designation of critical habitat. Both 
military installations requested exclusion from the designation based 
on national security reasons. We reviewed the request of

[[Page 20832]]

Yuma Proving Grounds and found that exclusion was not necessary for the 
area requested by the Yuma Proving Grounds because the actions 
described by the installation (overflight of critical habitat areas) 
would not physically impact habitat for the western yellow-billed 
cuckoo. Although the actions may require section 7 consultation to 
consider the effects to western yellow-billed cuckoos, they would not 
require consideration of adverse effects to critical habitat as 
overflights would have no habitat-based effects. In addition, this area 
has been excluded based on the LCR MSCP (see Exclusions, Private or 
Other Non-Federal Conservation Plans Related to Permits Under Section 
10 of the Act).
    Fort Huachuca also requested exclusion of critical habitat on areas 
outside the installation's jurisdiction. The Fort suggested that the 
base's groundwater may be impacted and result in reduced operational 
capacity in the future. The Fort is aware of our position that 
groundwater impacts will not occur as a result of the designation of 
critical habitat and the designation will not impact the Army's 
military operations. We reviewed their request and determined that the 
installation did not provide support for such an exclusion (see 
Exclusions, Exclusions Based on Impacts on National Security and 
Homeland Security).
    Comment 137: One commenter expressed concern that the economic 
analysis does not include costs to reinitiate consultations for several 
USFS projects and activities in proposed Unit 64 (CA-2) at Lake 
Isabella, California. These consultations include travel management in 
the Sequoia National Forest, recreation management at Lake Isabella, 
and the Hafenfeld Livestock Grazing Permit. In addition, the commenter 
noted that a new consultation would likely be required for any 
revisions to the Sequoia National Forest Land Management Plan. A public 
comment period for the Revised Draft Land Management Plan for the 
Sequoia National Forest (USFS 2019, entire) closed in September 2019.
    Our Response: The Service appreciates the new information provided 
by the commenter. As described in our revised proposed rule, we did not 
identify areas associated with operations and management of Lake 
Isabella as critical habitat. In addition, we excluded two additional 
areas that provide conservation for the western yellow-billed cuckoo 
(see Exclusions, Private or Other Non-Federal Conservation Plans or 
Agreements and Partnerships, in General). Because these areas are not 
designated as critical habitat, there are no economic costs of re-
initiation for critical habitat. For the remaining areas, section 3 of 
the economic analysis forecasts future section 7 consultation activity 
associated with the proposed designation based on the historical 
consultation activity resulting from the listing of the western yellow-
billed cuckoo in 2014. Exhibit A-2 presents the resulting expected 
annual consultation rates by unit. Importantly, the analysis concludes 
that the incremental costs resulting from the designation of critical 
habitat are likely to be limited to administrative costs of addressing 
critical habitat in consultation, and are unlikely to exceed the 
threshold for an economically significant rulemaking. To our knowledge, 
the USFS has yet to complete its land management plan.
    Comment 138: Multiple commenters expressed concern that the 
designation of critical habitat could negatively affect habitat 
restoration projects, including management programs designed to restore 
riparian corridors that have been overtaken by tamarisk. One commenter 
cites as an example an ongoing project delayed by the presence of 
critical habitat for another listed species in the Upper San Pedro 
River watershed.
    Our Response: Because the western yellow-billed cuckoo is listed as 
threatened, all the units are occupied during the breeding season, and 
habitat would need to be protected during the nonbreeding season, the 
majority of actions necessary to conserve the species would be required 
based on the listing of the western yellow-billed cuckoo. For 
activities that do have a Federal nexus for section 7 consultation, the 
Service does not anticipate conservation measures above and beyond 
those needed for conserving the listed western yellow-billed cuckoo. 
Section 3 of the economic analysis outlines the substantial baseline 
protections currently afforded the western yellow-billed cuckoo 
throughout the proposed designation. These baseline protections result 
from the listing of the western yellow-billed cuckoo under the Act and 
the presence of the species in all proposed critical habitat units, as 
well as overlap with habitat of other, similar listed species and 
designated critical habitat. As a result of these protections, the 
economic analysis concludes that incremental impacts associated with 
section 7 consultations for the western yellow-billed cuckoo are likely 
limited to additional administrative effort.
    In addition, because all proposed critical habitat units for the 
western yellow-billed cuckoo are considered occupied by the species, 
all projects with a Federal nexus will be required to consult with the 
Service under section 7 of the Act regardless of whether critical 
habitat is designated. As a result, the designation of critical habitat 
for the western yellow-billed cuckoo is unlikely to result in 
incremental delays to projects.
    Comment 139: Several commenters expressed concern that baseline 
protections for the western yellow-billed cuckoo, including several 
existing HCPs and the presence of southwestern willow flycatcher 
critical habitat, do not provide sufficient protection to the western 
yellow-billed cuckoo and its habitat. In particular, one commenter 
disagreed with the assumption used in the economic analysis that 
impacts have already occurred due to the listing of the western yellow-
billed cuckoo or the presence of other listed species. The commenter 
stated that, if this assumption were true, the designation of critical 
habitat for the western yellow-billed cuckoo would not be warranted. In 
addition, one commenter stated that environmental reviews for livestock 
grazing on Federal allotments have been reduced since the proposed rule 
was published, weakening baseline protection.
    Our Response: Guidelines issued by OMB for the economic analysis of 
regulations direct Federal agencies to measure the costs and benefits 
of a regulatory action against a baseline (i.e., costs and benefits 
that are ``incremental'' to the baseline). OMB defines the baseline as 
the ``best assessment of the way the world would look absent the 
proposed action.'' In the case of critical habitat designation for the 
western yellow-billed cuckoo, the baseline includes the listing of the 
species, as well as protections already afforded its habitat as a 
result of the presence of other listed species, such as the 
southwestern willow flycatcher and the least Bell's vireo. Because all 
proposed critical habitat units for the western yellow-billed cuckoo 
are considered occupied by the species, all projects with a Federal 
nexus will be subject to section 7 requirements regardless of whether 
critical habitat is designated. In addition, the Service anticipates 
that, except in cases that cannot be predicted at this time, project 
modifications recommended to avoid adverse modification of western 
yellow-billed cuckoo habitat will likely be the same as those needed to 
avoid jeopardy to the species. As a result, the economic analysis finds 
that the section 7-related costs of designating critical habitat for 
the western yellow-billed cuckoo are likely to be limited to additional

[[Page 20833]]

administrative effort to consider adverse modification in consultation.
    Comment 140: Multiple commenters noted that many existing HCPs 
offer baseline protection to the species. One commenter expressed 
concern that the designation of critical habitat could impose 
substantial economic burden on landowners participating in such HCPs. 
In addition, the commenter expressed concern that the designation of 
critical habitat could create a disincentive for landowners to develop 
new HCPs and thus negatively affect regional conservation.
    Our Response: HCPs, particularly those developed at a regional 
scale, are valuable tools for conservation. The designation of critical 
habitat for the western yellow-billed cuckoo may, in some cases, 
require re-initiation of past consultations, including consultations on 
HCPs. However, as described in section 3 of the economic analysis, 
incremental costs associated with section 7 consultations will likely 
be limited to additional administrative costs following the designation 
of critical habitat. Incremental impacts to HCP participants beyond 
third-party administrative costs of consultation are not expected, and 
we have excluded certain HCP areas from the final designation (see 
Exclusions, Private or Other Non-Federal Conservation Plans Related to 
Permits Under Section 10 of the Act).
    Comment 141: Multiple commenters expressed concern about potential 
impacts to utility operations. One commenter expressed concern that the 
designation of critical habitat within transmission and distribution 
corridors could hinder maintenance and operation activities. Such 
activities are required by the Federal Energy Regulatory Commission 
(FERC) to maintain equipment integrity, mitigate potential public 
safety hazards, and comply with vegetation management standards. 
Multiple commenters noted that non-compliance can result in penalties 
up to $1,000,000 per incident per day. Another commenter noted that 
impacts to grid reliability represent a significant public health and 
safety, as well as economic, concern.
    Our Response: Because the western yellow-billed cuckoo is listed as 
threatened, all the units are occupied during the breeding season and 
habitat would need to be protected during the nonbreeding season, the 
majority of actions necessary to conserve the species would be required 
based on the listing of the western yellow-billed cuckoo. For 
activities that do have a Federal nexus for section 7 consultation, the 
Service does not anticipate conservation measures above and beyond 
those needed for conserving the listed western yellow-billed cuckoo. 
Section 3 of the economic analysis outlines the substantial baseline 
protections currently afforded the western yellow-billed cuckoo 
throughout the proposed designation. These baseline protections result 
from the listing of the western yellow-billed cuckoo under the Act and 
the presence of the species in all proposed critical habitat units, as 
well as overlap with habitat of other, similar listed species and 
designated critical habitat. As a result of these protections, the 
economic analysis concludes that incremental impacts associated with 
section 7 consultations for the western yellow-billed cuckoo are likely 
limited to additional administrative effort.
    Comment 142: Several commenters were in favor of conservation 
efforts to protect the western yellow-billed cuckoo, yet they expressed 
concern that critical habitat designation would burden State regulatory 
agencies and restrict ranching, farming, or other activities on private 
lands. Other commenters were concerned about the level of oversight the 
Service has in designating critical habitat on privately owned land.
    Our Response: We are required to designate critical habitat for a 
federally listed species if it is determined to be both prudent and 
determinable, as is the case for the western yellow-billed cuckoo. We 
further note that we are currently under court order to finalize 
critical habitat for the western yellow-billed cuckoo.
    In regard to State and private landowner burden, critical habitat 
designations do not constitute or create a regulatory burden by 
themselves, in terms of regulations on private landowners carrying out 
private activities, but in certain areas they might trigger additional 
State regulatory reviews and other requirements. Our economic analysis 
did not find that there would be significant impacts for third party 
entities (e.g., States private actions). When a third party action 
requires Federal approval, permit, or is federally funded, the critical 
habitat designation might impose a Federal regulatory burden for 
private landowners, but consultation effort concerning the critical 
habitat or species would be the responsibility of the Federal entity 
involved, not the private landowner; absent Federal approval, permits, 
or funding, the designation should not affect farming, ranching, or 
other activities on private lands.
    Comment 143: Multiple commenters stated they have determined that 
the economic analysis is flawed in its approach and needs to be re-done 
in order to consider the unanalyzed economic impacts to the city of 
Sierra Vista, AZ, due to COVID-19. Other commenters stated the Service 
failed to analyze the economic impact on private landowners and the 
State of Arizona. Other commenters, including private landowners, 
stated that the Service should consider the economic benefits of 
birdwatching and recreational activities in riparian areas, and 
supported the enhanced property value of areas with more conservation 
focus. Other commenters expressed concerns that the economic analysis 
of the proposed critical habitat designation has not yet been released 
for public review and comment, which is required before proposed 
critical habitat can be finalized.
    Our Response: For both the 2014 proposed critical habitat and the 
2020 revised proposed critical habitat, we completed economic analyses 
to examine the incremental costs associated with the designation of 
critical habitat. The economic analyses did not identify significant 
impacts, and the two local government entities did not provide economic 
information regarding any of the activities identified. These analyses 
were available to the public as part of the docket for each publication 
in the Federal Register. Critical habitat does not restrict private 
landowner access to their property and would only need to be considered 
if Federal agency funding or permitting for an activity is needed. 
Because the areas are considered occupied, the majority of costs are 
not associated with the designation, but with listing of the species as 
threatened. If Federal funding is involved, the agency providing the 
funding is the party responsible for meeting obligations of consulting 
on projects on private lands. We have considered and applied the best 
available scientific and commercial information in determining the 
economic impacts associated with designating critical habitat. Section 
5 of the economic analysis explains that the primary intended benefit 
of critical habitat designation for the western yellow-billed cuckoo is 
to support the species' long-term conservation. Critical habitat 
designation may also generate ancillary benefits by protecting the 
primary constituent elements on which the species depends. As a result, 
management actions undertaken to conserve the species or its habitat 
may have coincident, positive social welfare implications, such as 
increased recreational opportunities in a region or

[[Page 20834]]

improved property values on nearby parcels.

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.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    Conservation, as defined under section 3 of the Act, means 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 
pursuant to 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 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 requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the Federal agency would be required to consult 
with the Service under section 7(a)(2) of the Act. However, even if the 
Service were to conclude that the proposed activity would result in 
destruction or adverse modification of the critical habitat, the 
Federal action agency and the landowner are not required to abandon the 
proposed activity, or to restore or recover the species; instead, they 
must implement ``reasonable and prudent alternatives'' to avoid 
destruction or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, 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). In identifying those 
physical or biological features that occur in specific occupied areas, 
we focus on the specific features that are essential to support the 
life-history needs of the species, including, but not limited to, water 
characteristics, soil type, geological features, prey, vegetation, 
symbiotic species, or other features. A feature may be a single habitat 
characteristic or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity.
    Under the second prong of the Act's definition of critical habitat, 
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. When designating critical habitat, the Secretary will first 
evaluate areas occupied by the species. The Secretary will consider 
unoccupied areas to be essential only where a critical habitat 
designation limited to geographical areas occupied by the species would 
be inadequate to ensure the conservation of the species. In addition, 
for an unoccupied area to be considered essential, the Secretary must 
determine that there is a reasonable certainty both that the area will 
contribute to the conservation of the species and that the area 
contains one or more of those physical or biological features essential 
to the conservation of the species (50 CFR 424.12(b)(2)).
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific 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 are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information from the SSA report and information developed during the 
listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; 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; other unpublished materials; or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. 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 needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will

[[Page 20835]]

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 
ensure their actions are not likely to jeopardize the continued 
existence of any endangered or threatened species; and (3) the 
prohibitions found in section 9 of the Act. 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 Essential to the Conservation of the 
Species

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas we will designate as 
critical habitat from within the geographical area occupied by the 
species at the time of listing, we consider the physical or biological 
features that are essential to the conservation of the species and that 
may require special management considerations or protection. The 
regulations at 50 CFR 424.02 define ``physical or biological features 
essential to the conservation of the species'' as the features that 
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water 
characteristics, soil type, geological features, sites, prey, 
vegetation, symbiotic species, or other features. A feature may be a 
single habitat characteristic or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity. For example, 
physical features essential to the conservation of the species might 
include gravel of a particular size required for spawning, alkaline 
soil for seed germination, protective cover for migration, or 
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include 
prey species, forage grasses, specific kinds or ages of trees for 
roosting or nesting, symbiotic fungi, or a particular level of 
nonnative species consistent with conservation needs of the listed 
species. The features may also be combinations of habitat 
characteristics and may encompass the relationship between 
characteristics or the necessary amount of a characteristic essential 
to support the life history of the species.
    In considering whether features are essential to the conservation 
of the species, the Service may consider an appropriate quality, 
quantity, and spatial and temporal arrangement of habitat 
characteristics in the context of the life-history needs, condition, 
and status of the species. These characteristics include, but are not 
limited to, space for individual and population growth and for normal 
behavior; food, water, air, light, minerals, or other nutritional or 
physiological requirements; cover or shelter; sites for breeding, 
reproduction, or rearing (or development) of offspring; and habitats 
that are protected from disturbance.
    We derive the specific physical or biological features required for 
the western yellow-billed cuckoo from studies of this species' habitat, 
ecology, and life history as described below. Additional information 
can be found in the proposed and final listing rules published in the 
Federal Register on October 3, 2013 (78 FR 61621), and October 3, 2014 
(79 FR 59992), respectively. The physical or biological features 
identified here focus primarily on breeding habitat and secondarily on 
foraging habitat because most of the habitat relationship research data 
derive from studies of these activities. Much less is known about 
migration, stop-over, or dispersal habitat within the breeding range; 
however, for these purposes, western yellow-billed cuckoos use a 
variety of habitats that may or may not be used for breeding. As a 
result, we do not think that habitat for these purposes is limiting, 
and we have not specifically identified areas for these purposes in our 
designation. As stated above, the species' use of an area for breeding 
purposes depends on food availability and habitat conditions. If those 
conditions are not adequate (i.e., prey not present, environmental 
conditions not favorable), the species may still use the area for the 
other purposes identified above. Although the wintering and nesting 
habitat for the western yellow-billed cuckoo that occurs outside of the 
United States was not considered for critical habitat designation, some 
information on breeding, migration, and wintering habitat outside the 
United States is provided. We have determined that the following 
physical or biological features are essential to the conservation of 
the western yellow-billed cuckoo.

Space for Individual and Population Growth and for Normal Behavior

    General breeding (nesting) habitat conditions. The western yellow-
billed cuckoo occurs and breeds during the breeding season (generally 
June through September--May breeding does occur but is less common) in 
a subset of its historical range in the western United States. The 
western yellow-billed cuckoo primarily uses nesting sites in riparian 
habitat where conditions are typically cooler and more humid than in 
the surrounding environment (Gaines and Laymon 1984, p. 75; Laymon 
1998, pp. 11-12; Corman and Magill 2000, p. 16). In the Southwest, the 
western yellow-billed cuckoo also nests in more arid-adapted habitat in 
drainages where conditions are also cooler and more humid than the 
surrounding environment (Griffin 2015, entire; MacFarland and Horst 
2015, entire; MacFarland and Horst 2017, entire; Corson 2018, entire; 
Drost et al. 2020, entire). Riparian habitat characteristics, such as 
dominant tree species, size and shape of habitat patches, tree canopy 
structure, tree age, vegetation height, and vegetation density, are 
important parameters of western yellow-billed cuckoo breeding habitat.
    Older studies were geographically limited in their scope but 
nevertheless established a suite of habitat characteristics that became 
the archetype for western yellow-billed cuckoo breeding habitat. 
However, habitat conditions across the DPS range vary considerably, and 
more recent investigations that included other areas within the western 
yellow-billed cuckoo's breeding range found that large areas of 
riparian woodland vegetation are not the only areas used by the species 
for nesting. We describe both the rangewide and southwestern breeding 
habitat below with particular emphasis on describing the southwestern 
habitat, because it is less well known as providing habitat for the 
western yellow-billed cuckoo.
    Rangewide breeding habitat. Rangewide breeding habitat across the 
DPS exists primarily in riparian areas along low-gradient streams, with 
patches of cottonwood (Populus spp.) and willow (Salix spp.) riparian 
vegetation with an overstory and understory component. Patches of trees 
interspersed with openings often aggregate into large expanses of 
habitat. The vegetation is often characterized as

[[Page 20836]]

riparian woodlands. More specifically, rangewide breeding habitat is 
characterized as having broad floodplains and open riverine valleys 
that provide wide floodplain conditions. The general habitat 
characteristics are areas that are often greater than 325 feet (ft) 
(100 meter (m)) wide but may be narrow in parts of the floodplain, 
contain low-gradient rivers and streams (surface slope usually less 
than 3 percent), are part of floodplains created where rivers and 
streams enter upstream portions of reservoirs or other water 
impoundments, or are in areas associated with irrigated upland terraces 
adjacent to water courses or riparian floodplains. The habitat is 
usually dominated by willow or cottonwood, but sometimes by other 
riparian species. The habitat has above-average canopy closure (greater 
than 70 percent), and a cooler, more humid environment than the 
surrounding riparian and upland habitats. The plant species most often 
associated with rangewide breeding habitat are identified above (see 
General Breeding (nesting) Habitat Conditions), and each may be 
dominant depending on location. These areas contain the moist 
conditions that support riparian plant communities made up of overstory 
and understory components that provide breeding sites, shelter, cover, 
and food resources for the western yellow-billed cuckoo. However, all 
foraging needs may not be provided within areas of critical habitat. 
Western yellow-billed cuckoo use rangewide breeding habitat as 
described above throughout the DPS, including where it occurs in the 
Southwest and the states of Sonora and Sinaloa, Mexico.
    In addition to cottonwood and willow, riparian vegetation may 
include tree species other than cottonwood and willow, including but 
not limited to boxelder (Acer negundo); ash (Fraxinus spp.); walnut 
(Juglans spp.); and sycamore (Platanus spp.) (Gaines 1974, pp. 7-9; 
Gaines and Laymon 1984, pp. 59-66; Groschupf 1987 pp. 5, 8-11, 16-18; 
Laymon and Halterman 1989, pp. 274-275; Corman and Magill 2000, pp. 5, 
10, 11, 15, 16; Dettling and Howell 2011a, pp. 27-28). In California, 
the species is typically found in riparian woodland areas along low-
gradient streams with patches of cottonwood (Populus spp.) and willow 
(Salix spp.) riparian vegetation with an overstory and understory 
component of other tree species, including but not limited to boxelder 
(Acer negundo); Oregon ash (Fraxinus latifolia); California black 
walnut (Juglans californica); California sycamore (Platanus racemosa); 
Fremont cottonwood (Populus fremontii); and valley oak (Quercus lobata) 
(Gaines 1974, pp. 7-9; Gaines and Laymon 1984, pp. 59-66; Laymon and 
Halterman 1989, pp. 274-275; Dettling and Howell 2011a, pp. 27-28).
    Western yellow-billed cuckoos have also been found nesting in 
orchards adjacent to riparian habitat during the breeding season 
(Laymon 1980, pp. 6-8; Laymon 1998, p. 5). Five pairs of western 
yellow-billed cuckoos were found nesting along the Sacramento River in 
a poorly groomed English walnut orchard that provided numerous densely 
foliaged horizontal branches on which western yellow-billed cuckoos 
built their nests (Laymon 1980, pp. 6-8). These western yellow-billed 
cuckoos that nested in the orchard did not forage there, but flew 
across the river to forage in riparian habitat. Kingsley (1985, pp. 
245-249; 1989, p. 142) described western yellow-billed cuckoos as being 
abundant in the pecan groves in Green Valley and Sahuarita, Arizona, 
with an estimated density of one nesting pair per 10 ac (4 ha). We 
consider these agricultural nesting sites to be the exception rather 
than the preferred nesting habitat for the species due to the paucity 
of reports identifying such nesting. In mapping the boundaries of the 
critical habitat, we avoided identifying agricultural lands within the 
designation. Any agricultural lands inadvertently within the boundary 
of the designation would not be considered critical habitat because 
those areas do not contain the physical or biological features.
    Southwestern breeding habitat. In parts of the Southwestern United 
States and the states of Sonora and Sinaloa, Mexico, western yellow-
billed cuckoo breeding habitat is more variable than in the rest of its 
range. Southwestern breeding habitat, found primarily in Arizona and 
New Mexico, occurs within or along perennial, intermittent, and 
ephemeral drainages in montane canyons, foothills, bajadas, desert 
floodplains, and arroyos. Breeding habitat may include woody side 
drainages, terraces, and hillsides immediately adjacent to the main 
drainage bottom below 6,000 ft elevation (1,829 m). In areas where 
water is especially limited, but is nonetheless productive in terms of 
food and cover for western yellow-billed cuckoos, breeding habitat 
often consists of narrow, patchy, and/or sparsely vegetated drainages 
surrounded by arid-adapted vegetation. Due to more arid conditions, 
southwestern breeding habitat contains a greater proportion of 
xeroriparian and nonriparian tree species than elsewhere in the DPS. 
Riparian and xeroriparian trees in these ecosystems may even be more 
sparsely distributed and less prevalent than nonriparian trees.
    Southwestern breeding habitat may be less than 325 ft (100 m) wide 
due to narrow canyons or limited water availability that do not allow 
for development of wide reaches of habitat. Southwestern breeding 
habitat is often but not always 200 ac (81 ha) or more in size, and may 
consist of a series of smaller tree and large shrub patches separated 
by openings. Occurring in both low- and high-gradient drainages, slope 
does not appear to be a factor in whether or not western yellow-billed 
cuckoos select these areas for nesting. Canopy closure is variable, and 
where trees are sparsely scattered, it may be dense only at the nest 
tree or small grove including the nest tree. The North American Monsoon 
brings high humidity and rainfall to some of these habitats especially 
in the ephemeral drainages in southeastern Arizona where winters are 
mild and warm, wet summers are associated with the monsoon and other 
tropical weather events (Wallace et al. 2013, entire; Erfani and 
Mitchell 2014, pp. 13096-13097). The more arid ephemeral drainages may 
not flow during summer monsoonal storms, but provide moisture for plant 
growth and insect production.
    Riparian and xeroriparian drainages in southwestern breeding 
habitat bisect other habitats and often contain a mix of habitats 
including but not limited to Madrean evergreen woodland (Madrean 
encinal and Madrean pinyon-juniper), desert grassland (including semi-
desert grassland), or desert scrub (including mesquite (Prosopis, spp.) 
upland and semi-desert scrub) (NatureServe 2016, entire; Drost et al. 
2020, entire). To simplify, we refer to these habitats as riparian, 
xeroriparian (including mesquite bosque), Madrean evergreen woodland, 
desert grassland, and desert scrub. More than one vegetation type 
within and immediately adjacent to the drainage may contribute toward 
nesting habitat. For example, mesquite, with deeper roots that can 
reach the water table, often flanks the upland perimeter of more water-
dependent cottonwood-willow riparian habitat. In addition to the 
riparian trees found across the species' range, the vegetation making 
up the breeding habitat of the western yellow-billed cuckoo in some 
areas, especially in the more arid Southwest, includes some other 
native and nonnative xeroriparian and non-riparian trees and large 
shrubs, such as, but not limited to: Mesquite, hackberry (Celtis 
reticulata and C. ehrenbergiana), soapberry (Sapindus saponaria), oak 
(Quercus spp.), acacia (Acacia spp.,

[[Page 20837]]

Senegalia greggi), mimosa (Mimosa spp.), greythorn (Ziziphus 
obtusifolia), desert willow (Chilopsis linearis), juniper (Juniperus 
spp.), pine (Pinus spp.), alder (Alnus rhombifolia and A. 
oblongifolia), wolfberry (Lycium spp.), Russian olive (Elaeagnus 
angustifolia), and tamarisk (Tamarix spp.) (Groschupf 1987 pp. 5, 8-11, 
16-18; Corman and Magill 2000, pp. 10, 15, 16; Corson 2018, pp. 5, 6-
20; Sferra et al. 2019, p. 3). Of these species, the nonriparian trees 
and large shrubs include oak, juniper, acacia, greythorn, mimosa, and 
mesquite (upland) (NatureServe 2013, pp. 11-18, 42-113, 132-140). 
Drainage bottoms in these habitats consist of riparian, xeroriparian 
and nonriparian trees and may be dominated by cottonwood, willow, 
mesquite, hackberry, ash, sycamore, walnut, or oak (Sogge et al. 2008, 
pp. 148-149; Johnson et al. 2012, pp. 20-21; WestLand Resources, Inc. 
2019, entire; Villarreal et al. 2014, p. 58; Griffin 2015, pp. 17-25; 
MacFarland and Horst 2015, pp. iiii, 2, 5-7; Corson 2018, entire; 
Sferra et al. 2019, p.3; Drost et al. 2020, entire).
    Occupied habitat within a single drainage may include both 
rangewide breeding habitat and southwestern breeding habitat, 
transitioning from large stands of gallery riparian forest to mesquite 
woodland, or narrow or patchy stands of riparian or xeroriparian 
habitat. These perennial and intermittent drainages include but are not 
limited to parts of the Gila River, upper Verde River, Blue River, 
Eagle Creek, Tonto Creek, San Francisco River, Aravaipa Creek, San 
Pedro River, lower Cienega Creek, Mimbres River, and the Rio Grande 
(Corman and Magill 2000, pp. 37-48; Sogge et al. 2008, pp. 148-149; 
Johnson et al. 2012, pp. 20-21; Arizona Game and Fish Department (AGFD) 
2018, entire; Cornell Lab of Ornithology 2020 (eBird data)).
    In more intermittent and ephemeral drainages that bisect Madrean 
evergreen woodlands, desert scrub, and desert grasslands in montane 
canyons, foothills, bajadas, and desert floodplains of southeastern 
Arizona, riparian and xeroriparian trees and large shrubs may be 
present, but are often sparsely distributed or in a narrow band along 
the drainage bottom. The hillsides immediately adjacent to the tree-
lined drainages range from dense woodlands to sparsely treed savannahs 
with a variety of grasses, contributing toward foraging and breeding 
habitat for the western yellow-billed cuckoo. Tree and large shrub 
species such as mesquite, hackberry, acacia, mimosa, and greythorn are 
present in desert scrub and desert grassland habitats (NatureServe 
2013, pp. 88, 134). Madrean evergreen woodland habitat contains oak, 
mesquite, juniper, acacia, and hackberry (Brown 1994, pp. 59-62) in 
southeastern Arizona and southwestern New Mexico's mountain ranges, and 
resembles habitat found in the Sierra Madre Occidental of Mexico. In 
southeastern Arizona, occupied southwestern breeding habitat that 
contains a more arid mix of species is found in drainages in the Santa 
Catalina Mountains, Rincon Mountains, Santa Rita Mountains, Patagonia 
Mountains, Huachuca Mountains, Pajarito/Atascosa Mountains, Whetstone 
Mountains, Dragoon Mountains, and Buenos Aires National Wildlife 
Refuge, among others (Corman and Magill 2000, pp. 37-48; American 
Birding Association 2014, entire; Griffin 2015, pp. 17-25; MacFarland 
and Horst 2015, pp. i-iii, 2, 5-7, 9-12; Tucson Audubon Society 2015, 
p. 44; Arizona Game and Fish Department 2018, entire; Dillon et al. 
2018, pp. 31-33; White et al. 2018, pp. 26-27; Rorabaugh 2019, in litt, 
entire; Sferra et al. 2019, pp. 3-6, 9-11; Corson 2018, entire; 
Westland Resources, Inc. 2019, entire; Cornell Lab of Ornithology 2020 
(eBird data; Drost et al. 2020, entire). In Sonora and Sinaloa, Mexico, 
western yellow-billed cuckoos also breed in similar riparian habitat 
bisecting mesquite-dominated woodlands, and semi-desert and desert 
scrub and grassland habitats (Russell and Monson 1998, p. 131).
    Remnant mesquite bosques, historically extensive throughout the 
Southwest along major rivers, still occupy some wide floodplains of the 
lower Colorado River, Gila, Salt, San Pedro, Santa Cruz, and Rio Grande 
Rivers in Arizona and New Mexico. In Sonora, Mexico, mesquite bosques 
where western yellow-billed cuckoos have nested have also been greatly 
reduced (Russell and Monson 1988, p. 131). For example, Arizona's upper 
San Pedro River contains extensive reaches of mesquite bosque breeding 
habitat adjacent to the cottonwood and willow dominated breeding 
habitat in a broad floodplain.
    Arid conditions and water management in the Southwest often 
influence stream flows into and downstream of reservoirs, limiting 
riparian vegetation regeneration, growth, and survival. In Arizona and 
New Mexico, narrow or patchy riparian breeding habitat can be found 
adjacent to heavily managed floodplains (such as areas within Caballo 
Reservoir and the Lower Rio Grande for example (White et al. 2018, pp. 
26-27)). Hydrologically perennial systems become intermittent or 
ephemeral due to reservoir management or water delivery requirements. 
For example, water abundance at Caballo Reservoir and downstream on the 
Lower Rio Grande varies from year-to-year, and timing of release may 
not occur prior to or throughout the western yellow-billed cuckoo 
breeding season. As a result, riparian (including xeroriparian) habitat 
may persist only as narrow bands or scattered patches along the 
bankline or as small in-channel islands, or sections of undisturbed 
native willows within the reservoir. Habitat within these areas may be 
as small as approximately 30 ac (12 ha) and is typically composed of 
either willow, tamarisk, or a mix of the two (White et al. 2018, pp. 
26-27). Adjacent habitat may include mowed nonnative vegetation 
typically less than 1 ft (0.3 m) tall or higher terraces within the 
floodplain with mesquite or other drought-tolerant vegetation.
    In a study on the Coronado National Forest, Arizona, Madrean 
evergreen woodland drainages used by western yellow-billed cuckoos were 
dominated by oak trees, often with mesquite trees flanking the riparian 
strip (MacFarland and Horst 2015, pp. 1, 7). The drainages often merge 
into the surrounding vegetation of juniper. In the wettest reaches of 
the drainages, the oaks are interspersed with Arizona sycamore, 
hackberry, willows, occasionally cottonwoods, and a few other 
infrequently occurring species such as Arizona ash and Arizona walnut 
(MacFarland and Horst 2015, p. 1). Total canopy cover in occupied 
habitat was about 52 percent, with oaks as the predominant overstory 
species recorded (overall average 35 percent), followed by mesquite (20 
percent), and juniper (16 percent). The most frequent riparian 
overstory species were sycamore (3 percent) followed by hackberry (5 
percent) and willow (2 percent). The average height of the most 
prevalent overstory tree species at each point recorded was 20 ft (6.1 
m). Habitat occupied during the breeding season (which we also refer to 
as territories even though western yellow-billed cuckoos may not defend 
habitat (Hughes 2015, p. 3)) tended to have a higher percentage of 
mesquites in the community composition, while unoccupied survey points 
had a higher percentage of junipers (MacFarland and Horst 2015, pp. 9-
10). Western yellow-billed cuckoo detections ranged in elevation from 
3,564 to 5,480 ft (1,086 to 1,670 m) (MacFarland and Horst 2015, p. 
10).
    Few western yellow-billed cuckoo detection records in southwestern 
New Mexico exist between 1998 and 2014 in Madrean evergreen woodland 
and

[[Page 20838]]

mesquite woodlands (including other thorn trees and shrubs) habitat 
similar to southeastern Arizona (Cornell Lab of Ornithology 2020 (eBird 
data)). Much of the southwestern New Mexico habitat is privately owned 
and is not visited as frequently by birders as is southeastern Arizona. 
No protocol surveys have been conducted in these areas. Based on the 
best available survey information, we have not identified confirmed 
breeding or breeding occupancy in Madrean evergreen woodland and 
mesquite woodlands in New Mexico. Therefore, no critical habitat is 
designated in similar southwestern habitat in southwestern New Mexico.
    Tamarisk. Within Southwestern breeding habitat, tamarisk, also 
known as salt cedar, is a common nonnative shrubby tree found occurring 
along or within stream courses in western yellow-billed cuckoo riparian 
habitat. Tamarisk, as a component of wildlife habitat, is often 
characterized as being poor habitat for many species of wildlife, but 
it can be a valuable substitute where the hydrology has been altered to 
the extent that native woodland habitat can no longer exist (Hunter et 
al. 1988, 113-123; Service 2002, pp. K-11-K-14; Sogge et al. 2008, pp. 
148-152; Shafroth et al. 2010, entire). The spread of tamarisk and the 
loss of native riparian vegetation is primarily a result of land and 
water management actions. Tamarisk does not invade and out-compete 
native vegetation in the Southwest (Service 2002, p. H-11). Rather, 
human actions have facilitated tamarisk dispersal to new locales, and 
created opportunities for its establishment by clearing vegetation, 
modifying physical site conditions, altering natural river processes, 
and disrupting biotic interactions (Service 2002, p. H-11). Because the 
presence and relative dominance of tamarisk is greatly influenced by 
hydrologic regime and depth to groundwater, native riparian vegetation 
in tamarisk-dominated systems is unlikely to reestablish unless the 
hydrologic regime is restored (Stromberg et al. 2007, pp. 381-391).
    Western yellow-billed cuckoos will sometimes build their nests and 
forage in tamarisk, but there is usually a native vegetation component 
within the occupied habitat (Gaines and Laymon 1984, p. 72; Johnson et 
al. 2008, pp. 203-204). Surveys conducted in the late 1990s in Arizona 
in historically occupied western yellow-billed cuckoo riparian habitat 
found 85 percent of all western yellow-billed cuckoo detections in 
habitat dominated by cottonwood with a strong willow and mesquite 
understory, 11.5 percent within mixed native and tamarisk habitats, 3.5 
percent within mixed native and Russian olive habitats, and only 5 
percent within tamarisk-dominated habitats (Johnson et al. 2008, pp. 
203-204; Johnson et al. 2010, pp. 204-205). Even in the tamarisk-
dominated habitat, cottonwoods were still present at all but two of 
these sites.
    Although tamarisk monocultures generally lack the structural 
diversity of native riparian habitat, western yellow-billed cuckoos may 
use these areas for foraging, dispersal, and breeding, especially if 
the tamarisk-dominated sites retain some native trees. Tamarisk 
contributes cover, nesting substrate, temperature amelioration, 
increased humidity, and insect production where native habitat 
regeneration and survivability has been compromised by altered 
hydrology (e.g., reduced flow or groundwater availability) and 
hydrologic processes (e.g., flooding and sediment deposition). In parts 
of the western yellow-billed cuckoo's range, some tamarisk-dominated 
sites are used for nesting and foraging including parts of the Bill 
Williams, Verde, Gila, Salt, and Rio Grande Rivers (Groschupf 1987, pp. 
9, 15; Corman and Magill 2000, pp. 11, 14-16, Halterman 2001, pp. 11, 
15; Leenhouts et al. 2006, p. 15; Sogge et al. 2008, p. 148; Sechrist 
et al. 2009, p. 55; Dockens and Ashbeck 2011a, pp. 1, B-26; Dockens and 
Ashbeck 2011b, pp. 8, D-2; Jarnevich et al. 2011, p. 170; McNeil et al. 
2013b, p. I-1; Jakle 2014, entire; Orr et al. 2014, p. 25; SRP 2014, 
entire; Service 2014b, p. 63; Arizona-Sonora Desert Museum 2016, 
entire; Dillon et al. 2018 pp. 31-33; White et al. 2018 pp. 26-27; and 
Parametrix, Incorporated (Inc.) and Southern Sierra Research Station 
2019, p. 5-1).
    Past restoration efforts favored nonnative tamarisk removal without 
regard for its habitat suitability for the western yellow-billed 
cuckoo. In areas where tamarisk is a major component (or part of the 
understory), its removal may not be appropriate or recommended because 
western yellow-billed cuckoo habitat selection may be based on 
overstory/understory structure or annual variation in environmental 
factors and not on specific vegetation types (Halterman 2001, pp. 11, 
15; Sechrist et al. 2009, p. 53). Halterman (2001, pp. 11, 15) found 
western yellow-billed cuckoos nesting in monoculture stands of tamarisk 
in 2001 for the first time in the 6-year study, indicating that use of 
tamarisk for nesting may change over time. In some areas, if tamarisk 
is removed, the remaining habitat may be rendered unsuitable because it 
is more exposed, hotter, and drier.
    Another issue in regard to tamarisk is the introduction of 
biocontrol agents to remove tamarisk. In 2001, the U.S. Department of 
Agriculture's Animal and Plant Health Inspection Service (APHIS) 
released various species of the nonnative tamarisk leaf beetle 
(Diorhabda sp.) in an effort to control tamarisk invasion (APHIS 2005, 
p. 4-5). Since 2001, the tamarisk leaf beetle has expanded rapidly and 
its distribution now encompasses much of the western United States 
(RiversEdge West, 2019, entire). This expansion of tamarisk defoliation 
will lead to habitat degradation and may render areas unsuitable for 
occupancy by the western yellow-billed cuckoo (Sogge et al. 2008, p. 
150). Defoliation during the breeding season also exposes eggs and 
nestlings to heat exposure and predation from decreased cover, as was 
documented in 2008 in St. George, Utah, with the exposure-caused 
failure of an active southwestern willow flycatcher nest (Paxton et al. 
2011, p. 257). In defoliated areas of the Rio Grande, canopy cover was 
still within the natural range of variation; however, the canopy cover 
was composed of dead leaves as opposed to live leaves, which changed 
the microclimate (Dillon and Ahlers 2018, pp. 26-27). Ultimately, the 
sampled areas with the most tamarisk and subsequent defoliation 
activity reflected the areas with the highest temperature extremes 
(Dillon and Ahlers 2018, pp. 26-27).
    Some tamarisk removal and native tree replacement projects are 
under way to offset the arrival of tamarisk leaf beetles and subsequent 
defoliation (Service 2016b, pp. 4-15). If these projects are 
unsuccessful in sustaining native woodland habitat of at least the same 
habitat value as habitat that was removed, the end result will be a net 
loss of habitat. Another nonnative species identified as a biocontrol 
agent, the tamarisk weevil (Coniatus sp.). has also been found in the 
wild in Arizona, California, Nevada, and Utah (Eckberg and Foster 2011, 
p. 51; Eichhorst et al. 2017, entire). The impact of the tamarisk 
weevil has not been well studied and currently has not been shown to 
significantly impact tamarisk-dominated habitats used by the western 
yellow-billed cuckoo.
    Breeding (nesting) habitat and home range size. In rangewide 
western yellow-billed cuckoo habitat, the habitat used for breeding and 
nesting by the species varies in size and shape. The available 
information indicates that the species requires large tracts of habitat 
for breeding and foraging during the nesting season (home range). The 
larger the extent of habitat, the more likely it

[[Page 20839]]

will provide suitable habitat for the western yellow-billed cuckoos and 
be occupied by nesting pairs (Laymon and Halterman 1989, pp. 274-275). 
Rangewide breeding habitat can be relatively dense contiguous stands or 
irregularly shaped mosaics of dense vegetation with more sparse or open 
areas.
    Along the Colorado River in California and Arizona, western yellow-
billed cuckoos tend to favor larger riparian habitat sites for nesting 
(Laymon and Halterman 1989, p. 275): Sites less than 37 ac (15 ha) are 
considered unsuitable nesting habitat; sites between 37 ac (15 ha) and 
50 ac (20 ha) in size were rarely used as nest sites; and habitat 
patches or aggregates of patches from 50 to 100 ac (20 to 40 ha) in 
size were considered marginal habitat (Laymon and Halterman 1989, p. 
275). Vegetation data collected in more recent years along the lower 
Colorado River at 834 plots from 2006 through 2012 indicated the median 
size of occupied sites (92 ac (37 ha)) was almost three times as large 
as unoccupied sites (32 ac (13 ha)) (McNeil et al. 2013b, p. 94). 
Habitat areas between 100 ac (40 ha) and 200 ac (81 ha), although 
considered suitable, are not consistently used by the species in 
California. The optimal size of habitat patches (aggregates of trees 
that may be interspersed with openings, sparse understory or canopy, or 
open floodplains) for the western yellow-billed cuckoo is generally 
greater than 200 ac (81 ha) in extent and these patches should have 
dense canopy closure and high foliage volume of willows and cottonwoods 
in at least a portion of the overall habitat patch (Laymon and 
Halterman 1989, pp. 274-275) to provide adequate space for nesting and 
foraging.
    In rangewide riparian breeding habitat and mixed riparian habitat 
in California, Arizona, and New Mexico, the home ranges used by the 
western yellow-billed cuckoo during the breeding season varied greatly 
(Laymon and Halterman 1987, pp. 31-32; Halterman 2009, p. 93; Sechrist 
et al. 2009, p. 55; McNeil et al. 2010, p. 75; McNeil et al. 2011, p. 
37; McNeil et al. 2012, p. 69; McNeil et al. 2013a, pp. 49-52; McNeil 
et al. 2013b, pp. 133-134). Home range estimates for western yellow-
billed cuckoos using telemetered birds on the lower Colorado River are 
considerably smaller (20 ha) than those reported from other areas such 
as the San Pedro River (38.6 ha) (Halterman 2009, p. 93) and the Rio 
Grande (56.3 ha) (Sechrist et al. 2009, p. 55) and may indicate 
differences in habitat area, quality, or prey densities (McNeil et al. 
2013b, p. 137). On the Rio Grande in New Mexico, Sechrist et al. (2009, 
p. 55) estimated a large variation in home range size, ranging from 12 
to 697 ac (5 to 282 ha). On the upper San Pedro River in Arizona, 
Halterman (2009, pp. 67, 93) also estimated a large variation in home 
range size, ranging from 2.5 to 556 ac (1 to 225 ha). In the 
intermountain west (Idaho, Utah, Colorado), the western yellow-billed 
cuckoo breeds in similar habitats as described above but that are more 
scattered and in lower density (Parrish et al. 1999, p. 197; Taylor 
2000, pp. 252-253; Idaho Department of Fish and Game 2005, entire; 
Wiggins 2005, p. 15). These measures suggest that the amount of habitat 
required to support nesting western yellow-billed cuckoos even in 
rangewide riparian breeding habitat is variable.
    Home range size is unknown in southwestern breeding habitat, 
including in more xeroriparian woodland, desert scrub and desert 
grassland drainages with a tree component, and in Madrean evergreen 
woodland drainages. Whether the area is considered marginal, suitable, 
or optimal depends on numerous factors and is variable across the 
species' range. Breeding habitat in more arid regions of the Southwest 
may be made up of a series of adjacent or nearly adjacent habitat 
patches, less than 200 ac (81 ha) each, which combined make up suitable 
breeding habitat for the species. Often interspersed with large 
openings, these habitat patches include narrow stands of trees, small 
groves of trees, or sparsely scattered trees. For example, in the Agua 
Fria River in central Arizona, occupied habitat consists not only of 
mature cottonwood and willow gallery forest (multi-aged and multi-
height forest) found in rangewide breeding habitat, but also smaller 
patches of young willows that are limited to narrow riparian corridors 
with mesquite on the adjacent terrace, characteristic of southwestern 
breeding habitat (Prager and Wise 2015, p. 13). In the bajadas, 
foothills, and mountain drainages of southeastern Arizona, scattered 
overstory trees, small patches of trees, or narrow stands of trees 
contain suitable breeding habitat (MacFarland and Horst 2015, entire, 
Corson 2018, pp. 5, 6-20; Sferra et al. 2019, entire).
    Although large expanses of habitat are better than small patches 
for the species, small habitat patches should be evaluated when 
managing for the western yellow-billed cuckoo. The optimal minimum 
breeding habitat patch size of 200 ac (81 ha) may not be applicable for 
much of the Southwest, where breeding habitat may be narrower and 
patchier and areas of less than 40 ac (16 ha) may be used for breeding 
(Sechrist et al. 2009, p. 55; White et al. 2018, pp. 14-37). These 
smaller sites support fewer western yellow-billed cuckoos, but 
collectively they may be important for achieving recovery.
    Western yellow-billed cuckoos appear to stage (gather) in southern 
Arizona or northern Mexico pre- and post-breeding, suggesting that this 
region is important to the DPS (McNeil et al. 2015, pp. 249, 251). Some 
individuals also roam widely (several hundred miles), apparently 
assessing food resources prior to selecting a nest site (Sechrist et 
al. 2012, pp. 2-11). A plausible explanation for prolonged presence in 
southern Arizona and northwestern Mexico pre- and post-breeding may be 
that western yellow-billed cuckoos are taking advantage of increased 
insect production in the monsoonal area. Identifying and maintaining 
habitat across the species' range is important to allow the species to 
take advantage of variable environmental conditions for successful 
breeding opportunities.
    Foraging area. Western yellow-billed cuckoos select a nesting site 
based on optimizing the near-term foraging potential of the 
neighborhood (Wallace et al. 2013, p. 2102). Given that western yellow-
billed cuckoos are larger birds with a short hatch-to-fledge time, the 
adults must have access to abundant food sources to successfully rear 
their offspring. High-quality foraging habitat in rangewide breeding 
habitat often contains a mixture of overstory and understory vegetation 
(typically cottonwoods and willows) that provides for diversity and 
abundance of prey. However, tree habitat does not always have both an 
overstory and understory. Western yellow-billed cuckoos generally 
forage within the tree canopy, and the higher the foliage volume the 
more likely western yellow-billed cuckoos are to use a site for 
foraging (Laymon and Halterman 1985, pp. 10-12). Foraging areas can be 
less dense with lower levels of canopy cover and often have a high 
proportion of cottonwoods in the canopy. Foraging areas can also 
include riparian habitat with a high abundance of tamarisk (White et 
al. 2020, pp. 51-54).
    The foraging distance and size of foraging habitat required by 
western yellow-billed cuckoo varies on prey availability and other 
environmental conditions and may vary annually and from site to site. A 
foraging area during the breeding season may overlap with other western 
yellow-billed cuckoo foraging areas if multiple nest sites are within a 
single area. Hughes (2015, p. 3) suggests that adjacent nesting western 
yellow-billed cuckoos use time spacing (i.e., no overlap in egg dates) 
to partition

[[Page 20840]]

resources, allowing many nesting pairs to share localized short-term 
abundance of food. In a study in rangewide breeding habitat in the 
Sacramento Valley, California, the mean size of foraging areas for 4 
pairs of western yellow-billed cuckoos was approximately 48 ac (19 ha) 
(range 27 to 70 ac (11 to 28 ha)) of which about 25 ac (10 ha) was 
considered usable habitat for foraging (Laymon 1980, p. 20; Hughes 
1999, p. 7).
    In the southwestern United States and northern Mexico, western 
yellow-billed cuckoo foraging habitat is usually more arid than 
adjacent occupied nesting habitat. Western yellow-billed cuckoos not 
only forage within woodland breeding habitat, but they also forage in 
almost any adjacent habitat. Desert vegetation in intermittent and 
ephemeral drainages or adjacent upland areas may require direct 
precipitation to flourish (Wallace et al. 2013, p. 2102). Other desert 
areas with spring-fed habitat may provide similar habitat conditions. 
Both are important features of western yellow-billed cuckoo foraging 
habitat in the arid Southwest. In Arizona and New Mexico, adjacent 
foraging habitat other than in riparian and xeroriparian or Madrean 
evergreen woodland habitat includes several types of semi-desert scrub, 
desert scrub, chaparral, semi-desert grassland, and desert grassland 
(Brown and Lowe 1982, entire; Brown 1994, entire; Brown et al. 2007, 
pp. 4-5; NatureServe 2016, entire; Drost et al. 2020, entire). In New 
Mexico along the Rio Grande, 29 percent of all estimated territories in 
the period 2009-2014 were located in understory vegetation (considered 
less than 6 m (15 ft) in height) that lacked a canopy component 
(considered less than 25 percent cover), but included a New Mexico 
olive (Forestiera neomexicana) component (Hamilton 2014, p. 3-84). Of 
these understory areas, roughly half were dominated by exotic species 
(primarily tamarisk) (Carstensen et al. 2015, pp. 57-61). Western 
yellow-billed cuckoos in New Mexico have also been observed foraging in 
adjacent habitat up to 0.5 mi (0.8 km) away from nest sites (Sechrist 
et al. 2009, p. 49). In the intermountain west (Idaho, Utah, Colorado), 
the western yellow-billed cuckoo breeds in similar habitats as 
described above but that are more scattered and in lower density 
(Parrish et al. 1999, p. 197; Taylor 2000, pp. 252-253; Idaho Fish and 
Game 2005, entire; Wiggins 2005, p. 15).
    Movement corridors and connectivity of habitat. The western yellow-
billed cuckoo is a neotropical migratory species that travels between 
North, Central, and South America each spring and fall (Sechrist et al. 
2012, p. 5; McNeil et al. 2015, p. 244; Parametrix, Inc. and Southern 
Sierra Research Station 2019, pp. 97-108). As such, it needs movement 
corridors of linking habitats and stop-over sites along migration 
routes and between breeding areas (Faaborg et al. 2010, pp. 398-414; 
Allen and Singh 2016, p. 9). During movements between nesting attempts, 
western yellow-billed cuckoos have been found at riparian sites with 
small groves or strips of trees, sometimes less than 10 ac (4 ha) in 
extent (Laymon and Halterman 1989, p. 274). The habitat features at 
stop-over and foraging sites are typically similar to the features at 
breeding sites, but may be smaller in size, may be narrower in width, 
and may lack understory vegetation. Western yellow-billed cuckoos may 
be using nonbreeding areas as staging areas or taking advantage of 
local foraging resources (Sechrist et al. 2012, pp. 7-9; McNeil et al. 
2015, pp. 250-252). As a result, western yellow-billed cuckoos use 
nonbreeding or intermittently used breeding areas as staging areas, 
movement corridors, connectivity between habitats, or foraging sites 
(taking advantage of local foraging resources). However, because these 
nonbreeding habitat areas are not limiting, we have not specifically 
identified them as critical habitat.

Summary of Space for Individual and Population Growth and for Normal 
Behavior

    Therefore, based on the information above, for the majority of 
habitat within the species' range (rangewide breeding habitat), we 
identify rivers and streams of lower gradient and more open valleys 
with a broad floodplain, containing riparian woodland habitat with an 
overstory and understory vegetation component made up of various plant 
species (most often dominated by willow or cottonwood) to be physical 
or biological features essential to the conservation of the western 
yellow-billed cuckoo. In more arid regions of the southwestern United 
States (southwestern breeding habitat), we also identify reaches of 
more arid riparian and xeroriparian habitat (including mesquite 
bosques), desert scrub and desert grassland drainages with a tree 
component, and Madrean evergreen woodland drainages in low- to high-
gradient drainages to be a physical or biological feature essential to 
the conservation of this species. These habitat types provide space for 
breeding, nesting, and foraging for the western yellow-billed cuckoo. 
These habitat features also provide for migratory or stop-over habitat 
and movement corridors for the western yellow-billed cuckoo.

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

    Food. Western yellow-billed cuckoos eat large insects but also prey 
on small vertebrates such as frogs (e.g., Hyla spp.; Pseudacris spp.; 
Rana spp.) and lizards (e.g., Lacertilia sp.) (Hughes 1999, p. 8). The 
diet of the western yellow-billed cuckoo on the South Fork Kern River 
in California showed the majority of the prey to be the big poplar 
sphinx moth larvae (Pachysphinx occidentalis) (45 percent), tree frogs 
(24 percent), katydids (22 percent), and grasshoppers (Order Othoptera) 
(9 percent) (Laymon and Halterman 1985, pp. 10-12; Laymon et al. 1997, 
p. 7). Minor prey at that site and other sites includes beetles (Order 
Coleoptera sp.), dragonflies (Order Odonata), praying mantis (Order 
Mantidae), flies (Order Diptera), spiders (Order Araneae), butterflies 
(Order Lepidoptera), caddis flies (Order Trichoptera), crickets (Family 
Gryllidae), and cicadas (Family Cicadidae) (Laymon et al. 1997, p. 7; 
Hughes 1999, pp. 7-8). In Arizona, cicadas are an important food source 
(Halterman 2009, p. 112). Western yellow-billed cuckoos on the Buenos 
Aires National Wildlife Refuge in Arizona were observed eating tent 
caterpillars, caterpillars of unidentified species, katydids, and 
lizards (Griffin 2015, pp. 19-20). At upper Empire Gulch in 
southeastern Arizona, a western yellow-billed cuckoo was photographed 
in a tree in gallery riparian forest with a leopard frog (Rana spp.) in 
its bill on July 21, 2014 (Barclay 2014, entire; Leake 2014, entire). 
In the intermountain west (Idaho, Utah, Colorado), the western yellow-
billed cuckoo feeds on similar insect species (Parrish et al. 1999, p. 
197; Idaho Fish and Game 2005, p. 2; Wiggins 2005, p. 18).
    Western yellow-billed cuckoos depend on an abundance of large, 
nutritious insect and vertebrate prey to survive and raise young. In 
portions of the southwestern United States, high densities of prey 
species may be seasonally found, often for brief periods of time, 
during the vegetation growing season. The arrival and nesting of 
western yellow-billed cuckoos typically coincides with the availability 
of prey, which is later than in the eastern United States (Hughes 2020, 
entire). Desiccated riparian sites produce fewer suitable insects than 
moist sites. In areas that typically receive rains during the summer 
monsoon, an increase in humidity, soil moisture, and surface

[[Page 20841]]

water flow are important triggers for insect reproduction and western 
yellow-billed cuckoo nesting (Wallace et al. 2013, p. 2102). Western 
yellow-billed cuckoos select a nesting site based on optimizing the 
near-term foraging potential of the habitat (Wallace et al. 2013, p. 
2102). Given that western yellow-billed cuckoos are large birds with a 
short hatch-to-fledge time, the adults must have access to abundant 
food sources to successfully rear their offspring (Laymon 1980, p. 27). 
The variability of monsoon precipitation across a region may result in 
areas with favorable conditions for western yellow-billed cuckoo 
nesting in one year and less favorable in a different year. In years of 
high insect abundance, western yellow-billed cuckoos lay larger 
clutches (three to five eggs rather than two), a larger percentage of 
eggs produce fledged young, and they breed multiple times (two to three 
nesting attempts rather than one) (Laymon et al. 1997, pp. 5-7).
    Therefore, we identify the presence of abundant, large insect fauna 
(e.g., cicadas, caterpillars, katydids, grasshoppers, crickets, large 
beetles, dragonflies, and moth larvae) and small vertebrates (frogs and 
lizards) during nesting season of the western yellow-billed cuckoo to 
be a physical or biological feature essential to the conservation of 
the species.
    Water and humidity. Rangewide breeding habitat for western yellow-
billed cuckoo is largely associated with perennial rivers and streams 
that support the expanse of vegetation characteristics needed by 
breeding western yellow-billed cuckoos. Throughout the western yellow-
billed cuckoo's range, winter precipitation (as rain or snow) provides 
water flow to the larger streams and rivers in the late spring and 
summer. In southwestern breeding habitat, western yellow-billed cuckoos 
also breed in ephemeral and intermittent drainages, some of which are 
associated with monsoonal precipitation events. Hydrologic conditions 
at western yellow-billed cuckoo breeding sites can vary between years. 
At some locations during low rainfall years, water flow may be reduced 
or absent, or soils may not become saturated at appropriate times. 
During high rainfall years, streamflow may be extensive and the 
riparian vegetation can be inundated and soil saturated for extended 
periods of time.
    The North American Monsoon (monsoon) is a large-scale weather 
pattern that causes high humidity and a series of thunderstorms during 
the summer in northwestern Mexico and the southwestern United States 
(Erfani and Mitchell 2014, pp. 13,096-13,097; National Weather Service 
2019, p. 4). It supplies about 60-80 percent of the annual 
precipitation for northwestern Mexico, 45 percent for New Mexico, and 
35 percent for Arizona (Erfani and Mitchell 2014, p. 13,096). The 
monsoon typically arrives in early to mid-July in Arizona and New 
Mexico, where much of the rainfall occurs in the mountains (Erfani and 
Mitchell 2014, pp. 13,096-13,097; National Weather Service 2019, p. 2). 
The southwestern United States, at the northern edge of the monsoon's 
range, receives less and more variable rainfall than northwestern 
Mexico (National Weather Service 2019, p. 2).
    Humid conditions created by the North American Monsoon (Erfani and 
Mitchell 2014, pp. 13,096-13,097; National Weather Service 2019, p. 2) 
and related surface and subsurface moisture appear to be important for 
the western yellow-billed cuckoo. The moisture provides a ``green-up'' 
(sudden germination or growth of vegetation) that attracts prey and 
improves habitat conditions. The species is restricted to nesting in 
moist riparian habitat or in drainages that bisect semi-desert, desert 
grasslands, desert scrub, and Madrean evergreen woodland in portions of 
the western United States and northern Mexico because of humidity 
requirements for successful hatching and rearing of young (Hamilton and 
Hamilton 1965, p. 427; Gaines and Laymon 1984, pp. 75-76; Rosenberg et 
al. 1991, pp. 203-204; Corman and Magill 2000, pp. 37-48; American 
Birding Association 2014, entire; Arizona Game and Fish Department 
2018, entire; Westland Resources, Inc. 2019, entire; Cornell Lab of 
Ornithology 2020, (eBird data)).
    Western yellow-billed cuckoos have evolved larger eggs and thicker 
eggshells, which help them cope with potential higher egg water loss in 
the hotter, drier conditions of the Southwest (Hamilton and Hamilton 
1965, pp. 426-430; Ar et al. 1974, pp. 153-158; Rahn and Ar 1974, pp. 
147-152). Nest sites have lower temperatures and higher humidity 
compared to areas along the riparian forest edge or outside the forest 
(Launer et al. 1990, pp. 6-7, 23). Recent research on the lower 
Colorado River has confirmed that western yellow-billed cuckoo nest 
sites had significantly higher daytime relative humidity (6-13 percent 
higher) and significantly lower daytime temperatures (2-4 degrees 
Fahrenheit (1-2 degrees Celsius) lower) than average forested sites 
(McNeil et al. 2011, pp. 92-101; McNeil et al. 2012, pp. 75-83).
    Seasonal precipitation results in vegetative regeneration in the 
intermittent and ephemeral drainages and adjacent desert scrub, desert 
grassland, and Madrean evergreen woodlands of the southwestern United 
States. High summer monsoonal humidity and rain lead to summer flow 
events in drainages and increased vegetative growth and associated 
insect production during the breeding season. The North American 
Monsoon promotes growth of shallow-rooted understory vegetation in 
mesquite-dominated woodlands, Madrean evergreen woodlands, desert scrub 
drainages, desert grassland drainages, and adjacent desert and 
grassland vegetation (Brown 1994, pp. 59-62; Wallace et al. 2013, p. 
2102). The hydrologic processes in Madrean evergreen woodlands, semi-
desert and desert scrub drainages, and semi-desert and desert grassland 
drainages of southeastern Arizona are different than the rest of the 
range of the western yellow-billed cuckoo. These bajada and upland 
habitats on gently rolling hillsides are interspersed with intermittent 
or ephemeral drainages. Humidity brought on by the summer monsoon may 
be an especially important trigger for breeding western yellow-billed 
cuckoos in this otherwise dry landscape.
    Nesting continues through August and frequently into September in 
southeastern Arizona, likely in response to the increased food 
resources associated with the seasonal summer rains (Corman and Wise-
Gervais 2005, p. 202). For example, the big poplar sphinx moth is an 
earth pupator (larvae burrow in the ground, and pupae emerge under 
certain environmental conditions) (Oehlke 2017, p. 5). The sphinx moth 
has a receptor that detects the water content of air to sense changes 
in humidity and when conditions are favorable for feeding and breeding 
(McFarland 1973, pp. 199-208; von Arx et al. 2012, p. 9471). In 
riparian woodland habitat soil, moisture and humidity cue the sphinx 
moths to emerge. In Arizona, summer monsoonal precipitation mimics 
typical riparian woodland soil moisture conditions, which cue the 
sphinx moth to emerge from the soil. Although sphinx moths are just one 
of the foods eaten by western yellow-billed cuckoos, we use these moths 
to illustrate that the unique monsoonal conditions in southeastern 
Arizona contributing toward food production are an important factor in 
western yellow-billed cuckoo presence in southeastern Arizona.
    A large proportion of the remaining occupied habitat persists in 
hydrologically altered systems in the

[[Page 20842]]

Southwest where the timing, magnitude, and frequency of natural flow 
have changed (Service 2002, pp. J1-J34). Hydrologically altered 
systems, with less dynamic riverine process than unaltered systems, can 
support suitable western yellow-billed cuckoo habitat if suitable 
woodland vegetation as described above is present. As discussed above 
and in the October 3, 2014, Federal Register listing the western 
yellow-billed cuckoo (79 FR 59992), human actions have cleared 
vegetation, modified physical site conditions, altered natural river 
processes, and disrupted biotic interactions along much of the western 
yellow-billed cuckoo habitat in the West (Service 2002, p. H-11). In 
the intermountain West (Idaho, Utah, Colorado), similar losses and 
degradation of habitat have occurred (Parrish et al. 1999, pp. 200-201; 
Idaho Fish and Game 2005, p. 3; Wiggins 2005, pp. 22-27). Habitat 
conditions are greatly influenced by hydrologic regime and depth to 
groundwater, and native riparian vegetation in altered systems is 
unlikely to reestablish unless the hydrologic regime is restored 
(Stromberg et al. 2007, pp. 381-391). However, these altered systems, 
which often cannot support the native plant species and structural 
diversity of unaltered systems, can support more adapted nonnative tree 
species like tamarisk or Russian olive. Western yellow-billed cuckoos 
occupy nonnative habitat interspersed with native habitat on the 
Colorado, Bill Williams, Verde, Gila, Santa Cruz, San Pedro, and Rio 
Grande Rivers (Corman and Magill 2000, pp. 15-16, 37-48; Sonoran 
Institute 2008, pp. 30-34; Dockens and Ashbeck 2011a, p. 6; Dockens and 
Ashbeck 2011b, p. 10; McNeil et al. 2013b, p. I-1; Arizona Game and 
Fish Department 2018, entire; Parametrix, Inc. and Southern Sierra 
Research Station 2019, p. 5-1).
    Subsurface hydrologic conditions are equally important to surface 
water conditions in determining riparian vegetation patterns. Depth to 
groundwater plays an important part in the distribution of riparian 
vegetation and western yellow-billed cuckoo habitat. Riparian forest 
trees need access to shallow groundwater to grow to the appropriate 
size and density to provide habitat for nesting, foraging, and 
migrating western yellow-billed cuckoos. Goodding's willows and Fremont 
cottonwoods do not regenerate successfully if the groundwater levels 
fall below 6 ft (2 m) from the surface (Shafroth et al. 2000, pp. 66-
75). Goodding's willows cannot survive if groundwater levels drop below 
10 ft (3 m), and Fremont cottonwoods cannot survive if groundwater 
drops below 16 ft (5 m) (Stromberg and Tiller 1996, p. 123). Abundant 
and healthy riparian vegetation decreases and habitat becomes stressed 
and less productive when groundwater levels are lowered (Stromberg and 
Tiller 1996, pp. 123-127).
    Therefore, based on the information above, we identify seasonally 
or perennially flowing rivers, streams, and drainages; elevated 
subsurface groundwater tables; vegetative cover that provides important 
microhabitat conditions for successful breeding and prey (high humidity 
and cooler temperatures); seasonal precipitation (winter and summer) in 
the Southwest; and high summer humidity as physical and biological 
features essential to the conservation of the western yellow-billed 
cuckoo.
    Conditions for germination and regeneration of vegetation. The 
abundance and distribution of fine sediment deposited on floodplains 
during flood events is critical for the development, abundance, 
distribution, maintenance, and germination of riparian tree species. 
This sediment deposition must be accompanied by sufficient surface 
moisture for seed germination and sufficient groundwater levels for 
survival of seedlings and saplings (Stromberg 2001, pp. 27-28). The 
lack of stream flow processes, which deposit such sediments and clear 
out woody debris, may lead riparian forested areas to senesce (age and 
become less productive) and to become degraded and not able to support 
the varied vegetative structure required for western yellow-billed 
cuckoo nesting and foraging.
    In unmanaged hydrologic systems (natural riverine systems), 
associated with rangewide breeding habitat, this variability of water 
flow results in removal of stream banks and deposition of soil and 
sediments. These sediments provide areas for vegetation (especially 
cottonwood and willow) to colonize and provide diverse habitat for the 
western yellow-billed cuckoo. In managed hydrologic systems (systems 
controlled by dams), stream flow is often muted and does not provide 
the magnitude of these removal and deposition events except during 
flood events depending on stream-bank composition (Fremier et al. 2014, 
pp. 4-6). However, if these systems are specifically managed to mimic 
more natural conditions, some removal and deposition can occur. The 
range and variation of stream flow frequency, magnitude, duration, and 
timing that will establish and maintain western yellow-billed cuckoo 
habitat can occur in both managed and unmanaged flow conditions 
depending on the interaction of the water feature and its floodplain or 
the physical characteristics of the landscape.
    However, successional vegetation change that produces suitable 
habitat consisting of varied vegetative structure can also occur in 
managed river and reservoir systems (and in human-altered river 
systems) when managed to mimic natural stream flows, but sometimes with 
different vegetation species composition, at different timing, 
frequency, and magnitude than natural riverine systems. For example, 
varying amounts of western yellow-billed cuckoo habitat are available 
from month-to-month and year-to-year as a result of dam operations. 
During dry years, when lake levels may be low, vegetation can be 
established and mature into habitat for the western yellow-billed 
cuckoo. In wet years, this vegetation can be flooded for extended 
periods of time and be stressed or killed. This is particularly true of 
areas upstream of reservoirs like Lake Isabella in California, 
Roosevelt and Horseshoe Reservoirs in Arizona, and Elephant Butte 
Reservoir in New Mexico, all of which have relatively large western 
yellow-billed cuckoo populations. The filling and draw-down of 
reservoirs often mimics the flooding and drying events associated with 
intact riparian woodland habitat and river systems providing habitat 
for the western yellow-billed cuckoo.
    In southern Arizona and New Mexico, where water is less available 
and releases do not mimic the natural hydrograph, riparian habitat is 
often narrower, patchier, sparser, and composed of more xeroriparian 
and nonriparian trees and large shrubs than in a free- flowing river. 
Habitat regeneration opportunities occur less frequently than in 
natural systems or managed systems that mimic the natural hydrograph. 
Prolonged drying and flooding from reservoir management can also affect 
food resources and habitat suitability for western yellow-billed 
cuckoos. For example, food availability is affected when prolonged 
inundation reduces survivability of ground-dwelling insects such as 
sphinx moth pupa or katydid eggs (Peterson et al. 2008, pp. 7-9). 
Likewise, prolonged drying reduces the vegetation available for prey 
insects to consume, so less insect biomass is available for western 
yellow-billed cuckoos.
    In the southwestern United States, the North American Monsoon 
season, which peaks in July and August when western yellow-billed 
cuckoos are breeding, provides about 45 percent and

[[Page 20843]]

35 percent of the annual precipitation for New Mexico and Arizona, 
respectively (Erfani and Mitchell 2014, p. 13096). The increased 
humidity and rains promote rapid and dense herbaceous growth (forbs, 
grasses, and vines) in occupied habitat in riparian (including 
xeroriparian) drainages intersecting desert scrub and desert grassland, 
and Madrean evergreen woodlands. In southeastern Arizona, Madrean 
evergreen woodland habitat receives half of the annual precipitation 
during the growing season from May through August (Brown 1994, pp. 60, 
62).
    Therefore, based on the information above, we identify flowing 
perennial rivers and streams and deposited fine sediments as physical 
and biological features essential to the conservation of the western 
yellow-billed cuckoo. These conditions may occur in either natural or 
regulated human-altered riverine systems. We also identify intermittent 
and ephemeral drainages and immediately adjacent upland habitat (which 
receive moisture as a result of summer monsoon events and other 
seasonal precipitation) that promote seed germination and regeneration 
as essential physical or biological features of western yellow-billed 
cuckoo habitat.
    Cover or shelter. Rangewide breeding habitat and the more arid 
southwestern breeding habitat provide the western yellow-billed cuckoo 
with cover and shelter while foraging and nesting. Placing nests in 
dense vegetation provides cover from predators that would search for 
adult western yellow-billed cuckoos, their eggs, nestlings, and fledged 
young. For example, northern harriers (Circus cyaneus) prey on western 
yellow-billed cuckoo nestlings in open riparian vegetation at 
restoration sites in California. Dense vegetation in the habitat patch 
makes it difficult for northern harriers to prey on species like the 
western yellow-billed cuckoo (Laymon 1998, pp. 12-14). As noted above, 
shelter provided by the vegetation also contributes toward providing 
nesting sites, temperature amelioration, and increased humidity, all of 
which assist in benefiting the life history of western yellow-billed 
cuckoo.
    Therefore, we identify riparian trees, including but not limited to 
willow, cottonwood, alder, walnut, sycamore, boxelder, and ash that 
provide cover and shelter for nesting, foraging, and dispersing western 
yellow-billed cuckoos as physical or biological features essential to 
the conservation of the western yellow-billed cuckoo. In southwestern 
breeding habitat in more arid riparian drainages, in addition to the 
riparian species above, we identify oak, mesquite, hackberry, acacia, 
juniper, greythorn, mimosa, soapberry, desert willow, Russian olive, 
and tamarisk that provide cover and shelter for nesting, foraging, and 
dispersing western yellow-billed cuckoos as physical or biological 
features essential to the conservation of the western yellow-billed 
cuckoo.
    Sites for breeding, reproduction, or rearing (or development) of 
offspring.
    Young habitat. The presence of young trees appears to be a 
component of breeding habitat in at least some sites. In studies of 
riparian forests throughout California and along the California-Arizona 
border along the lower Colorado River, researchers found that the 
western yellow-billed cuckoo is not restricted to old-growth willows 
and cottonwood habitat, but occurs in habitat with younger trees and 
saplings 9-32 ft (3-30 m) or less (Gaines and Laymon 1984, pp. 73-75; 
Anderson and Laymon 1989, entire; Laymon and Halterman 1989, entire; 
Raulston 2020, p. 4). Along the lower Colorado River in restored sites 
at the Palo Verde Ecological Reserve, the number of western yellow-
billed cuckoo territories increased annually until the fourth year 
after planting and then began declining and moving into more recently 
planted areas (Raulston 2020, p. 20). Between 2008 and 2012, 
researchers found that small tree stem density associated with young 
trees and total canopy closure at revegetation sites positively 
associated with western yellow-billed cuckoo nest placement and that 
native large tree stem density showed only a weak positive association 
with nest placement (McNeil et al. 2013b, ES-2, Raulston 2020, p. 5). 
Area (site size) was also a predictor of site occupancy to a lesser 
degree; the median size of occupied sites (37.2 ha) was almost three 
times as large as unoccupied sites (12.8 ha).
    Western yellow-billed cuckoo nests have been documented in Fremont 
cottonwood, Goodding's black willow (Salix gooddingii), red willow 
(Salix laevigata), coyote willow (Salix exigua), yew-leaf willow (Salix 
taxifolia), Arizona sycamore, mesquite, tamarisk, hackberry, boxelder, 
soapberry, Arizona walnut, acacia, ash, alder, seep willow (Baccharis 
salicifolia), English walnut (Juglans regia), oak, and juniper (Laymon 
1980, pp. 6-8; Laymon 1998, p. 7; Hughes 1999, p. 13; Corman and Magill 
2000, p. 16; Halterman 2001, p. 11; Halterman 2002, p. 12; Halterman 
2003, p. 11; Halterman 2004, p. 13; Corman and Wise-Gervais 2005, p. 
202; Halterman 2005, p. 10; Halterman 2007, p. 5; Holmes et al. 2008, 
p. 21; McNeil et al. 2013b, pp. I-1-I-3; Tucson Audubon Society 2015, 
p. 44; Groschupf 2015, entire; MacFarland and Horst 2015, pp. 9-12; 
Sferra et al. 2019, p. 3).
    In one study of a compilation of nests, nest site characteristics 
in rangewide riparian woodland breeding habitat have been compiled from 
217 western yellow-billed cuckoo nests from primarily rangewide 
breeding habitat on the Sacramento and South Fork Kern Rivers in 
California, and the Bill Williams and San Pedro Rivers in Arizona. 
Western yellow-billed cuckoos generally nest in thickets dominated by 
willow trees along floodplains greater than 200 ac (81 ha) in extent 
and greater than 325 ft (100 m) in width. Nests are placed on well-
foliaged branches closer to the tip of the branch than the trunk of the 
tree (Hughes 1999, p. 13). Nests are built from 4 ft to 73 ft (1 m to 
22 m) above the ground (average 22 ft (7 m)). Nests at the San Pedro 
River averaged higher (29 ft (9 m)) than either the Bill Williams River 
(21 ft (6 m)) or the South Fork Kern River (16 ft (5 m)). Nest trees 
ranged from 10 ft (3 m) to 98 ft (30 m) in height and averaged 35 ft 
(11 m). In older stands, heavily foliaged branches that are suitable 
for nesting often grow out into small forest openings or over sloughs 
or streams, making for ideal nest sites. In younger stands, nests are 
more often placed in vertical forks or tree crotches. Most nest sites 
in the study were in rangewide riparian breeding habitat and were 
placed in willows (72 percent of 217 nests), in generally willow-
dominated sites. Nests were also documented in other riparian tree 
species, including Fremont cottonwood (13 percent), mesquite (7 
percent), tamarisk (4 percent), netleaf hackberry (Celtis laevigata 
var. reticulata) (2 percent), English walnut (Juglans regia) (1 
percent), boxelder (less than 1 percent), and soapberry (Sapindus 
saponaria) (less than 1 percent) (Laymon 1980, p. 8; Laymon 1998, p. 7; 
Hughes 1999, p. 13; Corman and Magill 2000, p. 16; Halterman 2001, p. 
11; Halterman 2002, p. 12; Halterman 2003, p. 11; Halterman 2004, p. 
13; Corman and Wise-Gervais 2005, p. 202; Halterman 2005, p. 10; 
Halterman 2007, p. 5; Holmes et al. 2008, p. 21).
    Canopy cover directly above the nest is generally dense (average 
cover is 89 percent) and is denser at the South Fork Kern River (93 
percent) and Bill Williams River (94 percent) than at the San Pedro 
River (82 percent). Canopy closure in a plot around the nest averages 
71 percent and was higher at the Bill Williams River (80 percent) than 
at the South Fork Kern River (74 percent) or San Pedro River (64 
percent) (Laymon et al. 1997, pp. 22-23; Halterman 2001, pp. 28-29; 
Halterman

[[Page 20844]]

2002, p. 25; Halterman 2003, p. 27; Halterman 2004, p. 42; Halterman 
2005, p. 32; Halterman 2006, p. 34). In the intermountain West (Idaho, 
Utah, Colorado), the western yellow-billed cuckoo breeds in similar 
habitats as described above, but they are more scattered and in lower 
density (Parrish et al. 1999, pp. 196-197; Taylor 2000, pp. 252-253; 
Idaho Fish and Game 2005, entire; Wiggins 2005, p. 15). Optimal 
breeding habitat in rangewide riparian breeding habitat contains 
willow-dominated groves with dense canopy closure and well-foliaged 
branches for nest building with nearby foraging areas consisting of a 
mixture of cottonwoods and willows with a high volume of healthy 
foliage.
    In a study on a lower Colorado River revegetation site, where 
cottonwood, willow, and mesquite were planted yellow-billed cuckoos 
nested in cottonwoods (n = 95, 57.5 percent), Goodding's willows (n = 
49, 29.7 percent), honey mesquite (Prosopis glandulosa) (n = 13, 7.9 
percent), tamarisk (n = 5, 3.0 percent), coyote willow (n = 2, 1.2 
percent), and seep willow (n = 1, 0.7 percent) (Parametrix, Inc. and 
Southern Sierra Research Station 2019, Table 24 p. 89). Trees or shrubs 
used as nest substrates ranged in height from 2.5 m (8.2 ft) to 25.0 m 
(82 ft) (mean = 12.3 m (40.4 ft)). Nest heights ranged from 1 m (3.3 
ft) to 20 m (66 ft) (mean = 7.6 m (24.8 ft)) (Parametrix, Inc. and 
Southern Sierra Research Station 2019, pp. ES-3, 88). Tamarisk was not 
planted and is uncommon within the revegetation sites.
    Some historical records document western yellow-billed cuckoo 
presence during the breeding season in extensive mesquite bosques on 
the Santa Cruz River and in the semi-desert grasslands and desert scrub 
xeroriparian drainages of Canelo Hills; and in the Madrean evergreen 
woodlands mountain drainages of the Atascosa, Pajarito, Santa Rita, 
Patagonia, Huachuca, and Chiricahua Mountains of Southeastern Arizona 
(Groschupf (1987, pp. 11, 14, 16; Corman and Magill 2000, pp. 26-29, 
37). In Arizona in the late 1990s, western yellow-billed cuckoos were 
documented in Sycamore Canyon and Pena Blanca Canyon in the Atascosa 
Mountains, Canelo Hills, and in the desert scrub and grassland 
xeroriparian drainages in the Altar Valley on Buenos Aires National 
Wildlife Refuge (Corman and Magill 2000, pp. 38, 40-44, 48, 51). The 
first oak nest documented in a Madrean evergreen woodland drainage was 
found in the lower Santa Rita Mountains in 2014 (Tucson Audubon Society 
2015, p. 44).
    In a 2018-2019 study to confirm western yellow-billed cuckoo 
breeding (copulation, active nests, or fledged young), breeding was 
documented at 39 out of 51 occupied sites in ephemeral xeroriparian 
drainages in Madrean evergreen woodland, desert and semi-desert scrub, 
and semi-desert grassland habitats in southeastern Arizona. These 51 
occupied drainages were in the lower Santa Catalina Mountains, lower 
Santa Rita Mountains, Patagonia Mountains, lower Atascosa Mountains, 
Altar Valley, Baboquivari Mountains, Canelo Hills, and Huachuca 
Mountains (Drost et al. 2020, pp. 11-13. Multiple nests were found at 
some sites, including Las Guijas Wash and Canoa Wash in the Altar 
Valley, and Box Canyon and Florida Canyon in the Santa Rita Mountains. 
Trees where nests were placed varied in size and amount of cover, 
ranging from small to large trees and from well-concealed nests to 
partially exposed nests (Service 2020c, entire). Most nests were 
located along the drainage bottoms (See section on southwestern 
breeding (nesting) habitat).
    Therefore, we identify rangewide riparian woodland generally 
containing willow and cottonwood, usually within floodplains greater 
than 200 ac (81 ha) in extent and greater than 325 ft (100 m) in width, 
with one or more densely foliaged nesting areas, to be a physical or 
biological feature essential to the conservation of the species. In 
some areas, we also identify southwestern breeding habitat (drainages 
with riparian, xeroriparian, and nonriparian tree and large shrub 
habitat intersecting desert scrub, desert grassland, and Madrean 
evergreen woodland, and Madrean pinyon-juniper woodland) that may be 
less than the 200-ac (81-ha) area, 325-ft (100-m) width with one or 
more nesting and foraging sites to be a physical or biological feature 
essential to the conservation of the species.
    Effects of climate change. The available information on the effects 
of climate change has led us to predict that there will be altered 
environmental conditions across the western United States (the breeding 
range of the western yellow-billed cuckoo) (Hoerling et al. 2013, pp. 
3-15). In the southwestern United States, northern Mexico, California, 
Intermountain West, and Pacific Northwest, climate change information 
is generally leading us to predict an overall warmer, drier climate, 
with periodic episodic precipitation events that, depending on site 
conditions, are expected to have adverse effects on habitat of the 
western yellow-billed cuckoo (Enquist et al. 2008, pp. 1-32; Gardali et 
al. 2012, pp. 8-10; Munson et al. 2012, pp. 1,083-1,095; Friggens and 
Finch 2015, entire; Smith and Finch 2016, entire). In rivers that 
depend on snowmelt, these changes are expected to result in more winter 
flooding and reduced summer stream flows (Dominguez et al. 2012, pp. 1-
7). The amount of surface and groundwater available to regenerate and 
sustain riparian forests is expected to decline overall with persistent 
drought, favor the spread of tamarisk and other nonnative vegetation, 
and increase fire frequency (Westerling et al. 2006, pp. 942-943; 
McCarthy 2012, pp. 23-25; Smith and Finch 2016, p. 128). Precipitation 
events under most climate change scenarios within the range of the DPS 
will decrease in frequency and increase in severity (Dominguez et al. 
2012, pp. 4-7; Melillo et al. 2014, pp. 70-81). Impacts to riparian 
habitat from climate change will exacerbate impacts from water drawdown 
from human use, impoundments, channelization, and alteration of river 
flows across the western United States and Mexico, and from conversion 
of habitat from native to mostly nonnative vegetation (Glenn and Nagler 
2005, p. 439; Bradley et al. 2009, pp. 1514-1519; IPCC 2014, pp. 4-11; 
Friggens and Finch 2015, pp. 120-131).
    Changing climate is expected to place added stress on the species 
and its habitat. This change may reduce available nesting sites and 
patch size and affect prey abundance as a result of lower humidity in 
riparian areas from reduced moisture retention, through periods of 
prolonged desiccation, and through increased likelihood of scouring 
flood events (Melillo et al. 2014, p. 75). A recent study found western 
yellow-billed cuckoo habitat suitability to be significantly reduced 
with hotter maximum July temperatures and increased distance to water 
along the Rio Grande, with 65-98 percent of their suitable habitat in 
New Mexico expected to be lost by 2090 (Friggens and Finch 2015, p. 
11). Droughts may impact areas in Arizona that are influenced by 
monsoons (Wallace et al. 2013, pp. 2094-2107). Analyses of stream gauge 
data in the southwestern United States indicate that earlier and 
diminished stream discharge is expected in Arizona, Colorado, New 
Mexico, and Utah, which will likely reduce survival and reproduction 
rates of cottonwood, willow, box elder, and sycamore tree species 
(Smith and Finch 2016, pp. 120-131). Habitat suitability models further 
predict that changes in climate will increase habitat fragmentation and 
decrease breeding habitat patch size along the Rio Grande

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in New Mexico (Friggens and Finch 2015, pp. 1-22). In addition, 
evidence shows that climate change may disrupt the synchrony of nesting 
western yellow-billed cuckoos and their food supply, causing further 
population decline and curtailment of its occupied range (Durst 2004, 
pp. 40-41; Scott et al. 2004, p. 70; Visser and Both 2005, pp. 2561-
2569). For a more thorough discussion of climate change and the impacts 
it has on habitat for the western yellow-billed cuckoo, see the final 
rule to list the species as threatened published in the Federal 
Register on October 3, 2014 (79 FR 59992 at 60023).

Summary of Physical or Biological Features Essential for the Western 
Yellow-billed Cuckoo

    According to 50 CFR 424.12(b)(1)(ii), we identify physical and 
biological features essential to the conservation of the species at an 
appropriate level of specificity using the best available scientific 
data. This analysis will vary between species and may include 
consideration of the appropriate quality, quantity, and spatial and 
temporal arrangements of such features in the context of the life 
history, status, and conservation needs of the species.
    Given the wide variety and extent of foraging habitat outside the 
breeding habitat, and the large geographic areas in which western 
yellow-billed cuckoos search for food, we are not designating foraging 
habitat as critical habitat. Based on our current knowledge of the 
habitat characteristics required to sustain the species' life-history 
processes including breeding and dispersing, we have determined that 
the specific physical or biological features essential to the 
conservation of the western yellow-billed cuckoo consist of the 
following three components:
    Physical or Biological Feature 1--Rangewide breeding habitat. 
Riparian woodlands across the DPS; Southwestern breeding habitat, 
primarily in Arizona and New Mexico: Drainages with varying 
combinations of riparian, xeroriparian, and/or nonriparian trees and 
large shrubs. This physical or biological feature includes breeding 
habitat found throughout the DPS range as well as additional breeding 
habitat characteristics unique to the Southwest.
    a. Rangewide breeding habitat (including areas in the Southwest). 
Rangewide breeding habitat is composed of riparian woodlands within 
floodplains or in upland areas or terraces often greater than 325 ft 
(100 m) in width and 200 ac (81 ha) or more in extent with an overstory 
and understory vegetation component in contiguous or nearly contiguous 
patches adjacent to intermittent or perennial watercourses. The slope 
of the watercourses is generally less than 3 percent but may be greater 
in some instances. Nesting sites within the habitat have an above-
average canopy closure (greater than 70 percent), and have a cooler, 
more humid environment than the surrounding riparian and upland 
habitats. Rangewide breeding habitat is composed of varying 
combinations of riparian species including the following nest trees: 
Cottonwood, willow, ash, sycamore, boxelder, alder, and walnut.
    b. Southwestern breeding habitat. Southwestern breeding habitat, 
found primarily in Arizona and New Mexico, is more variable than 
rangewide breeding habitat. Southwestern breeding habitat occurs within 
or along perennial, intermittent, and ephemeral drainages in montane 
canyons, foothills, desert floodplains, and arroyos. It may include 
woody side drainages, terraces, and hillsides immediately adjacent to 
the main drainage bottom. Drainages intersect a variety of habitat 
types including, but not limited to, desert scrub, desert grassland, 
and Madrean evergreen woodlands (presence of oak). Southwestern 
breeding habitat is composed of varying combinations of riparian, 
xeroriparian, and/or nonriparian tree and large shrub species 
including, but not limited to, the following nest trees: Cottonwood, 
willow, mesquite, ash, hackberry, sycamore, walnut, desert willow, 
soapberry, tamarisk, Russian olive, juniper, acacia, and/or oak. In 
perennial and intermittent drainages, Southwestern riparian breeding 
habitat is often narrower, patchier, and/or sparser than rangewide 
riparian breeding habitat and may contain a greater proportion of 
xeroriparian trees and large shrub species. Although some cottonwood 
and willow may be present in Southwestern riparian habitat, 
xeroriparian species may be more prevalent. Mesquite woodland may be 
present within the riparian floodplain, flanking the outer edges of 
wetter riparian habitat, or scattered on the adjacent hillsides. The 
more arid the drainage, the greater the likelihood that it will be 
dominated by xeroriparian and nonriparian nest tree species. Arid 
ephemeral drainages in southeastern Arizona receive summer humidity and 
rainfall from the North American Monsoon (PBF 3), with a pronounced 
green-up of grasses and forbs. These arid ephemeral drainages often 
contain xeroriparian species like hackberry or nonriparian species 
associated with the adjacent habitat type like oak, mesquite, acacia, 
mimosa, greythorn, and juniper. In southeastern Arizona mountains, 
breeding habitat is typically below pine woodlands (~6,000 ft (1,829 
m)).
    Physical or Biological Feature 2--Adequate prey base. Presence of 
prey base consisting of large insect fauna (for example, cicadas, 
caterpillars, katydids, grasshoppers, large beetles, dragonflies, moth 
larvae, spiders), lizards, and frogs for adults and young in breeding 
areas during the nesting season and in post-breeding dispersal areas.
    Physical or Biological Feature 3--Hydrologic processes. The 
movement of water and sediment in natural or altered systems that 
maintains and regenerates breeding habitat. This physical or biological 
feature includes hydrologic processes found in rangewide breeding 
habitat as well as additional hydrologic processes unique to the 
Southwest in southwestern breeding habitat:
    a. Rangewide breeding habitat hydrologic processes (including the 
Southwest): Hydrologic processes (either natural or managed) in river 
and reservoir systems that encourage sediment movement and deposits and 
promote riparian tree seedling germination and plant growth, 
maintenance, health, and vigor (e.g., lower-gradient streams and broad 
floodplains, elevated subsurface groundwater table, and perennial 
rivers and streams). In some areas where habitat is being restored, 
such as on terraced slopes above the floodplain, this may include 
managed irrigated systems that may not naturally flood due to their 
elevation above the floodplain.
    b. Southwestern breeding habitat hydrologic processes: In 
southwestern breeding habitat, elevated summer humidity and runoff 
resulting from seasonal water management practices or weather patterns 
and precipitation (typically from North American Monsoon or other 
tropical weather events) provide suitable conditions for prey species 
production and vegetation regeneration and growth. Elevated humidity is 
especially important in southeastern Arizona, where western yellow-
billed cuckoos breed in intermittent and ephemeral drainages.
    Because the western yellow-billed cuckoo exists in noncontiguous 
areas across a wide geographical and elevational range and its habitat 
is subject to dynamic events, the areas described below (see Final 
Critical Habitat Designation) are essential to the conservation of the 
western yellow-billed cuckoo because they provide opportunities for 
breeding, allow for connectivity between habitat, assist in dispersal, 
provide redundancy to

[[Page 20846]]

protect against catastrophic loss, and provide representation of the 
varying habitat types used for breeding, thereby helping to sustain the 
species. The physical or biological features essential to the 
conservation of the western yellow-billed cuckoo are present in the 
areas designated, but the specific quality of habitat for nesting, 
migration, and foraging will vary in condition and location over time 
due to plant succession and the dynamic environment in which they 
exist. As a result, the areas that are designated may not contain at 
any one time all of the physical and biological features that have been 
identified for the western yellow-billed cuckoo.
    Based on use of the areas for breeding, we conclude that all of the 
areas identified contain all or most of the physical or biological 
features, but in some cases, these features are less prevalent, or 
their presence is variable over time due to the changing nature of 
habitat from hydrologic processes. As stated above, all critical 
habitat units are considered to have been occupied at the time of 
listing.

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 that are essential to the conservation of 
the species and which may require special management considerations or 
protection. Here we describe the type of special management 
considerations or protection that may be required for the physical or 
biological features identified for the western yellow-billed cuckoo 
above. The specific critical habitat units and subunits where these 
management considerations or protection may be required are identified 
in Table 2 below.
    A detailed discussion of activities influencing the western yellow-
billed cuckoo and its habitat can be found in the final listing rule 
(79 FR 59992, October 3, 2014). The above-described physical or 
biological features (PBFs) may require special management 
considerations or protection to reduce the following threats or 
potential threats: Disruption of hydrologic processes that are 
necessary to maintain a healthy riparian system; unauthorized or 
uncontrolled grazing; loss of habitat from development activities and 
extractive uses (sand, gravel, or mineral extraction); degradation of 
habitat as a result of expansion of nonnative vegetation; destruction 
of habitat by uncontrolled wildfire; reduction of prey insect abundance 
by the unauthorized or improper application of pesticides; removal of 
habitat by biocontrol insects; and habitat loss and degradation from 
invasive nonnative pest insects. More specific activities that may need 
special management are identified in Table 2, below.
    Special management considerations or protection are required within 
critical habitat areas to address these threats. Management activities 
that could ameliorate these threats include (but are not limited to) 
the following: Monitoring and regulating stream flows below reservoirs 
to mimic natural flooding and other hydrologic processes to help 
maintain habitat; establishing permanent conservation easements or land 
acquisition to protect the species and its habitat; minimizing habitat 
disturbance, fragmentation, and destruction through use of best 
management practices; and providing appropriate buffers around western 
yellow-billed cuckoo habitat.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b), we 
review available information pertaining to the habitat requirements of 
the species and identify specific areas within the geographical area 
occupied by the species at the time of listing and any specific areas 
outside the geographical area occupied by the species to be considered 
for designation as critical habitat. We are not currently designating 
any areas outside the geographical area occupied by the species because 
the western yellow-billed cuckoo is found throughout its historical 
range, nor are we designating all areas within the geographical area 
occupied by the species. Additional areas besides those identified as 
critical habitat may be important for recovery for the western yellow-
billed cuckoo, but these areas were not identified as critical habitat; 
however, they may be part of future recovery planning efforts for the 
species.
    To determine and select appropriate occupied areas that contain the 
physical or biological features essential to the conservation of the 
species, we developed a conservation strategy for identifying critical 
habitat for the species. The goal of our conservation strategy for the 
western yellow-billed cuckoo is to assist in recovery of the species to 
the point where the protections of the Act are no longer necessary. 
Other actions in addition to designating critical habitat may be 
necessary to achieve recovery of the species including development of 
additional management actions aimed at conserving, enhancing, and 
protecting the western yellow-billed cuckoo and its habitat. These 
actions would be further identified in a Recovery Plan for the species. 
The role of critical habitat in achieving this conservation goal is to 
identify the specific areas within the western yellow-billed cuckoo's 
range that provide essential physical and biological features, without 
which areas the DPS's rangewide resiliency, redundancy, and 
representation could not be achieved. This, in turn, requires an 
understanding of the fundamental parameters of the species' biology and 
ecology based on well-accepted conservation-biology and ecological 
principles for conserving species and their habitats, such as those 
described by Carroll et al. (1996, pp. 1-12); Meffe and Carroll (1997, 
pp. 347-383); Shaffer and Stein (2000, pp. 301-321); NRCS (2004 
entire); Tear et al. (2005, pp. 835-849) and Wolf et al. (2015, pp. 
200-207); and more general riparian and avian conservation management 
prescriptions such as those described in Service 1985; Gardner et al. 
1999; Wyoming Partners in Flight 2002; Rich et al. 2004; Riparian 
Habitat Joint Venture (RHJV) 2004; Shuford and Gardali 2008; and Griggs 
2009.

Conservation Strategy

    In developing our conservation strategy for determining what areas 
to include as critical habitat for the western yellow-billed cuckoo, we 
focused on the western yellow-billed cuckoo's breeding habitat. 
Breeding habitat includes areas for nesting and foraging and also 
provides for dispersal habitat when breeding or food resources may not 
be optimal. Breeding habitat is widely spread across the species' range 
and typically provides the physical and biological features essential 
to the conservation of the species without which rangewide resiliency, 
redundancy, and representation of the species could not be achieved. As 
explained further below, this focus led to the inclusion of breeding 
habitat within three general habitat settings as part of the 
conservation strategy. The three general settings include: (1) Large 
river systems (mainstem rivers and their tributaries) in the southern 
and central portions of New Mexico, Arizona, and along the California 
border with Arizona (generally referred to as the Southwest); (2) 
locations within southern Arizona not associated with major river 
systems or their tributaries; and (3) large river systems outside the 
Southwest (as identified in (1) above) that occur in

[[Page 20847]]

different ecological settings that are being consistently used as 
breeding areas by western yellow-billed cuckoo (such as areas in parts 
of California, Utah, Idaho, or Colorado).
    As discussed above, the western yellow-billed cuckoo is a migratory 
species that travels long distances to take advantage of localized food 
resource outbreaks or habitat availability. Maintaining breeding areas 
(which include nesting habitat, foraging habitat, and dispersal 
habitat) throughout the range of the western yellow-billed cuckoo 
allows for within-year and year-to-year movements to take advantage of 
any spatial and temporal changes in habitat resources and food 
abundance. We consider this necessary to conserve the species because 
of the dynamic nature of habitat used by the species. Identifying 
habitat across the species' range, but primarily in the Southwest where 
the core of the population breeds: (a) Helps maintain a robust, well-
distributed population and enhances survival and productivity of the 
western yellow-billed cuckoo as a whole; (b) facilitates interchange of 
individuals between units; (c) promotes recolonization of any sites 
within the current range of the species that may experience declines or 
local extirpations due to low productivity or temporary habitat loss or 
changes in resource availability from the core population areas; and 
(d) allows for use of areas not being used as breeding in a given year 
as habitat for movement and dispersal.
    The western yellow-billed cuckoo breeding coincides with moist and 
humid conditions that support abundant prey resources occurring in the 
temperate zones of the western United States and northern Mexico during 
the late spring and summer. Breeding areas of the western yellow-billed 
cuckoo occur primarily in riparian woodlands along perennial rivers or 
intermittent or ephemeral drainages containing vegetative structure, 
canopy cover, and appropriate environmental conditions. These areas 
provide suitable nesting habitat and adjacent foraging habitat with 
adequate food resources on a consistent basis to successfully produce 
and fledge young.
    In general, the north-south migratory pathway of the western 
yellow-billed cuckoo funnels through northern Mexico into the American 
Southwest, with a significant portion of returning birds establishing 
breeding territories along large river systems (mainstem rivers and 
their tributaries) in the southern and central portions of New Mexico, 
Arizona, and along the California border with Arizona. A significant 
proportion of breeding western yellow-billed cuckoos also occurs in 
large river systems in northwestern Mexico, primarily in Sonora and 
Sinaloa, with smaller numbers in Chihuahua and Western Durango, and the 
tip of Baja California. While returning western yellow-billed cuckoos 
also establish breeding territories throughout portions of the western 
States north of Arizona and New Mexico, these large southwestern and 
Mexican river systems (including but not limited to the Lower Colorado, 
Salt, Virgin, San Pedro, Gila, Verde, and Rio Grande Rivers) serve as 
core breeding habitats for the western yellow-billed cuckoo as it 
returns from wintering grounds in South America. These core areas 
together provide a consistent, robust supply of resources necessary for 
the maintenance and expansion of western yellow-billed cuckoos into 
other habitats across the range. We consider the large river systems 
(mainstem rivers and their tributaries) in the southern and central 
portions of New Mexico, Arizona, and along the California border with 
Arizona to be core areas for conservation of the western yellow-billed 
cuckoo, and they constitute the first part of our conservation strategy 
in determining its critical habitat. The core mainstem rivers and 
streams along with their major tributaries and adjacent habitats 
contain the physical or biological features essential for the 
conservation of the western yellow-billed cuckoo.
    However, these managed large river systems may not provide 
sufficient breeding habitat for the western yellow-billed cuckoo in all 
years (for example, in low flow years the amount of breeding habitat 
along rivers is diminished), and unregulated smaller tributaries 
supported or influenced by monsoonal weather patterns may assist in 
supporting breeding western yellow-billed cuckoos during low flow or 
drought conditions. Thus, the second part of our conservation strategy 
includes areas within southern Arizona not associated with major river 
systems or their tributaries as identified above. In southern Arizona, 
western yellow-billed cuckoo also use drier habitats for breeding sites 
in the desert, foothill, and mountain ephemeral drainages of southern 
Arizona and northwestern Mexico (including but not limited to desert 
grasslands and scrub, and Madrean evergreen woodland drainages). These 
areas receive moisture from the seasonal North American Monsoon weather 
systems and other summer tropical storm events. During the breeding 
season, these habitats experience a ``flush'' of vegetation and 
concurrent insect population eruptions, especially in the drainages 
receiving relatively more moisture than uplands.
    A portion of the DPS uses these wet-seasonal or monsoonal habitats 
in southern Arizona and Mexico for breeding habitat. Use of these types 
of sites by the western yellow-billed cuckoo provides additional 
resiliency to the species due to the different weather patterns and 
hydrological regimes that produce the habitat conditions suitable for 
breeding. The availability of these additional resilient sites in 
southern Arizona and northwestern Mexico other than the large 
southwestern and Mexican river systems described above increases the 
overall redundancy for the species. Therefore, the southwestern 
monsoon-driven drainages with sufficient resources for western yellow-
billed cuckoo foraging and successful breeding are essential for the 
overall resiliency and redundancy of the DPS and are therefore 
essential to allow for conservation of the western yellow-billed cuckoo 
across its range.
    Finally, while large riverine riparian systems in the core area of 
the American Southwest are fundamentally important for their ability to 
contribute to the resiliency of the western yellow-billed cuckoo due to 
the abundance of birds in these areas, similar systems throughout the 
western yellow-billed cuckoo range are also likely important 
contributors to local resiliency and maintaining distribution of the 
western yellow-billed cuckoo across its range. These large river 
systems outside the Southwest that are being consistently used as 
breeding areas by western yellow-billed cuckoo have been identified as 
the third part of our conservation strategy for determining critical 
habitat. These areas are located in habitats identified as being within 
different ecological settings, eco-types, or physio-geographic 
provinces and provide for additional redundancy and representation for 
the western yellow-billed cuckoo across its breeding range. The 
physical and biological features of large river systems in differing 
habitats with sufficient resources for western yellow-billed cuckoo 
foraging and successful breeding are likely important for contributing 
to the western yellow-billed cuckoo's overall resiliency, redundancy, 
and representation, and are therefore essential for conservation of the 
western yellow-billed cuckoo across its range. Habitats and 
environmental settings in the arid Southwest differ significantly from 
those in central California or higher elevation areas of Utah, Idaho, 
or Colorado. By identifying known breeding habitat of appropriate size 
throughout the species' range, we

[[Page 20848]]

provide habitat where yellow-billed cuckoos are most likely to thrive 
and potentially increase in numbers.

Selection Criteria and Methodology Used To Determine Critical Habitat

    As discussed above, to assist in determining which areas to 
identify as critical habitat for the western yellow-billed cuckoo, we 
focused our selection on areas known to have breeding or suspected 
breeding. The western yellow-billed cuckoo is a migratory bird and 
travels long distances between its wintering grounds in Central and 
South America to its breeding grounds in Mexico and the Continental 
United States. As a result, the western yellow-billed cuckoo continues 
to be found in areas throughout its historical range in the west, 
including areas which it may pass through or stopover during its 
travels. Some of the areas it travels through or stops over at, may 
include parks, golf courses, or other areas not containing the physical 
or biological features essential to the conservation of the species. 
Other areas, such as historically occupied breeding areas also contain 
the physical or biological features for the species but are not 
occupied for breeding. Currently known or suspected breeding areas were 
selected as critical habitat because they contain the physical and 
biological features essential to the conservation of the species 
necessary for western yellow-billed cuckoos to produce offspring, have 
ample foraging habitat, vegetative structure, environmental conditions, 
and prey. By selecting breeding areas as critical habitat across the 
western yellow-billed cuckoo's range, we will assist in conserving the 
ability of the species to continue to occupy these areas. Moreover, the 
breeding habitat is most likely to be essential to the conservation of 
the species because of the importance of breeding for survival and 
recovery of the species.
    For the 2014 proposed rule, we reviewed information between 1998 
and 2014 to determine whether the area was occupied at the time of 
listing. For the 2020 revised proposed rule, we proposed additional 
units we consider to have been occupied at the time of listing using 
new data received through the 2017 breeding season. To further support 
designation of these units, we used additional occupancy or nesting 
data up until the 2020 breeding season.
    We considered an area to be a breeding area if it was occupied by 
the western yellow-billed cuckoo in one of the following two ways:
     If western yellow-billed cuckoos were present in the area 
on one or more days between June 1 and September 30 (considered to be 
the primary breeding period) in at least two years between 1998 and 
2014 (or later as described above); or
     If western yellow-billed cuckoos were confirmed to be a 
pair and nesting was observed (or there was evidence of nesting 
behavior) in at least one year between 1998 and 2014, regardless of the 
time of year. Thus, if the mated pair and evidence of nesting behavior 
was discovered prior to June 1, the area was considered to be a 
breeding area. Evidence of nesting behavior other than presence of an 
active nest includes copulation, food carries (bird does not eat food) 
to the same area, stick carries (nest building), multiple incidents of 
alarm calls, fledgling (unable to fly) with adult, distraction display 
(dropped wing), or pair exchanging multiple ``kowlp'' or alarm calls 
(not coos) within 100 m (328 ft) of one another (Service and 
Reclamation 2019).
    In addition to these fundamental criteria established for breeding 
areas across the DPS range, we identified additional criteria for areas 
in the Southwest (Arizona and New Mexico). This was to take into 
account the migratory nature of the species moving up from Mexico 
through the Southwest, either to or from other breeding areas. The 
additional criteria is as follows:
     Areas in the Southwest were not considered to be breeding 
areas if the area contains only two western yellow-billed cuckoo 
records from different years, one of which was in September and no 
pairs were detected. Although western yellow-billed cuckoos are still 
breeding in September in Arizona, a September detection may or may not 
signify breeding due to birds migrating south or moving between 
breeding areas in Mexico.
    As described above, to delineate the units of critical habitat, we 
first looked to those areas being used during the breeding season. We 
defined what we considered breeding areas as those areas that contained 
seasonal occurrences of the western yellow-billed cuckoo between 1998 
and 2014, during the timeframe in which breeding typically occurs for 
the species in the United States (June-September). In limited 
instances, this timeframe was expanded into May if the information 
available confirmed breeding activity during this earlier timeframe. 
These breeding season occurrences (location points where western 
yellow-billed cuckoos were detected or breeding activity was confirmed) 
were then plotted on maps along with information on vegetation cover, 
topography, and aerial imagery. We then delineated habitat around that 
location, as well as riparian habitat (including xeroriparian and 
associated nonriparian habitat in the Southwestern drainages) upstream 
and downstream from the occurrence location.
    We used survey data and reports prepared by the USGS, USFS, NPS, 
BLM, Reclamation, the Salt River Project, State wildlife agencies, 
State natural diversity data bases, Cornell Lab of Ornithology (eBird 
data), researchers, nongovernment organizations, universities, and 
consultants, as well as available information in our files, to 
determine the location of areas used for breeding within the 
geographical area occupied by the western yellow-billed cuckoo at the 
time of listing. As stated above, since 2014, we have become aware of 
additional areas occupied by the species with evidence of breeding. We 
still consider these areas to have been occupied by the species at the 
time of listing, based on habitat conditions and occupancy of nearby 
areas.
    Because of the dynamic aspects of western yellow-billed cuckoo 
habitat as a result of potential flooding, changing river locations, 
and land uses, we used the active floodplain to identify where riparian 
habitat occurs. When delineating the critical habitat boundary, we 
included the surrounding contiguous suitable woodland habitat 
(including along the stream course and in immediate uplands for 
breeding, feeding, and sheltering) upstream and downstream until we 
identified a major break in the vegetation. In many drainages, we 
included these 0.25 miles (mi) (0.62 kilometers (km)) or more breaks in 
habitat to combine one or more areas if we determined that: (1) The gap 
in vegetation was within minor variances of this distance; (2) the 
habitat on the other side of the gap was a continuation of similar or 
better suitable habitat and included breeding occupancy as identified 
above; or (3) the gap in vegetation was determined to be a consequence 
of natural stream dynamics essential to the continuing function of the 
hydrologic processes of the occupied areas.
    By including breaks in habitat and combining areas, we allow for 
regeneration of vegetation in these areas, which is often more 
productive and provides additional food resources for the species and 
allows for appropriate habitat conditions for use when dispersing to 
other breeding locations. Blocks of suitable habitat often contain 
openings that can change over time in dynamic riverine systems. 
Naturally occurring gaps in habitat following flooding and scouring are 
part of succession in riparian systems. In time, trees will regenerate 
and fill these

[[Page 20849]]

openings. Suitable habitat consists of a variety of configurations that 
include small patches of woodland interspersed with openings, large 
expanses of woodland, narrow woodland, or a combination of different 
configurations within the same drainage at any given time. Western 
yellow-billed cuckoos often nest and forage near the edges and openings 
that are part of the matrix of suitable habitat. Upland woodland 
habitat immediately adjacent to river, stream, or drainages may be 
composed of more xeroriparian or nonriparian trees.
    In California, western yellow-billed cuckoos forage mainly within 
the riparian woodland habitat or directly adjacent uplands when 
breeding (Laymon 1980, pp. 6-8; Hughes 2015, p. 12). In New Mexico, 
foraging activity has been observed in riparian habitat, immediately 
adjacent tree-covered habitat (including salt cedar) and a variety of 
upland habitats including desert scrub (Sechrist et al. 2009, pp. 24-
50). However, based on foraging behavior in other habitats in the West, 
we expect the foraging distance to remain relatively close to the 
nesting habitat. In addition, riparian corridors along streams, 
especially in highly developed areas, can in some instances be very 
narrow, highly degraded, and be characterized as a patchwork of 
vegetated and nonvegetated areas.
    Whether these habitat areas were included or combined into a single 
larger unit depended on the extent of use of the areas by western 
yellow-billed cuckoo, the relative amount of habitat gained if the 
multiple patches were included or combined, the relationship of the 
area to the overall designation, and the ease or complexity of removing 
all nonhabitat from the designation. In addition, by combining these 
areas, they then better meet an appropriate scale of analysis, given 
the data as is described in our regulations for determining critical 
habitat (50 CFR 424.12(b)(1)). For example, if a break in habitat 
occurred between an area with high occupancy with sufficient habitat 
and an area with low occupancy, the adjacent area may not have been 
included. Alternatively, if two smaller areas with relatively low 
occupancy were adjacent to each other, those areas most likely would 
have been combined to form a single, larger, more manageable area.
    To distinguish between the western yellow-billed cuckoo more 
typical breeding habitat in riparian areas throughout the range from 
breeding habitat recently found in more arid areas of the Southwest, we 
use the terms ``rangewide breeding habitat'' and ``southwestern 
breeding habitat,'' respectively (see Space for Individual and 
Population Growth and for Normal Behavior below). In rangewide breeding 
habitat, we generally selected low-gradient streams containing the 
physical and biological features that were greater than 200 ac (81 ha)) 
in size. In considering the extent of each area, in some cases we 
included the entire streambed as well as the presently vegetated areas. 
Streams, especially those with intermittent flows, migrate within the 
streambed depending on flows and other natural fluvial processes. The 
vegetated areas within the streambed may also move to coincide with the 
stream movement. As a result, the whole area may not be contiguously 
vegetated. In these low-gradient rangewide riparian breeding habitats 
(i.e., cottonwood, willow), areas that currently contain less than 200 
ac (81 ha) of riparian habitat outside the Southwest were not selected. 
However, in some areas of the Southwest, the physical or biological 
features for areas used as breeding habitat vary from other locations 
in the range of the western yellow-billed cuckoo. These areas occur in 
Arizona and New Mexico and are associated with summer monsoonal 
moisture and are smaller, narrower habitat areas that may extend into 
upland areas (areas dominated by mesquite and oak) with higher 
gradient. Selection of these areas depended on the amount of use of the 
area by the species, the relative proximity to other selected areas, 
the ecosystem uniqueness, or value to distribution of the area on the 
landscape. As a result, these habitat sites were selected on a case-by-
case basis to provide for the variability of habitat use by the species 
in these areas.
    We have not included critical habitat units within Oregon or 
Washington because the species has been extirpated as a breeder from 
those States since at least the 1940s (Littlefield 1988, p. 2; 
Washington Department of Fish and Wildlife 2013, pp. 200-201), and 
recent observations of the species, although promising, have not 
coincided for the most part with suitable breeding habitat and appear 
to be dispersing but not breeding birds. We also did not include 
occupied areas within Montana, Nevada, and Wyoming. The reasons for not 
including critical habitat in these States is that sufficient areas 
already have been identified within this designation, and these areas 
do not meet our conservation strategy for designating critical habitat. 
The conservation strategy focuses on areas with confirmed breeding. No 
confirmed breeding has been identified in Montana or Wyoming. In 
Nevada, the only known areas where the western yellow-billed cuckoo has 
confirmed breeding is in the southern part of the State near the 
borders of California and Arizona. These habitats are essentially the 
same as those identified in the Southwest in Arizona and New Mexico, 
but do not significantly contribute to population numbers for the 
western yellow-billed cuckoo.
    Sources of data reviewed or cited for this species in the 
development of critical habitat include peer-reviewed articles, 
information maintained by universities and State agencies, existing 
State management plans, species-specific reports, habitat information 
sources, climate change studies, incidental detections, and numerous 
survey efforts conducted throughout the species' range, including but 
not limited to the more recent information below: Corman and Magill 
2000; Dockens and Ashbeck 2011a, 2011b; SRP 2011a, 2011b; Beason 2012; 
Dettling and Seavy 2012; Gardali et al. 2012; Johnson et al. 2012; 
McCarthy 2012; McNeil et al. 2012; Sechrist et al. 2012; Greco 2013; 
IPCC 2013; Johnson et al. 2013; McNeil et al. 2013b; Pederson et al. 
2013; Rohwer and Wood 2013; Scribano 2013; Sechrist et al. 2013; 
Stromberg et al. 2013; Wallace et al. 2013; American Birding 
Association 2014; Ault et al. 2014; Garfin et al. 2014; IPCC 2014; 
Melillo et al. 2014; Orr et al. 2014; Stanek 2014; Villarreal et al. 
2014; Dettling et al. 2015; Griffin 2015; Hughes 2015; MacFarland and 
Horst 2015, 2017; Van Dooremolen 2015; WestLand Resources, Inc. 2015 
a,b,c,d,e; Arizona Game and Fish Department 2018; Corson 2018; 
Parametrix, Inc., and Southern Sierra Research Station 2019; RiversEdge 
West 2019; Sferra et al. 2019; WestLand Resources, Inc. 2019; Cornell 
Lab of Ornithology 2020 (eBird data); and Drost et al. 2020.
    The amount and distribution of critical habitat that we are 
designating will give the western yellow-billed cuckoo the opportunity 
to potentially: (1) Maintain its existing distribution; (2) move 
between areas depending on food, resource, and habitat availability; 
(3) increase the size of the population to a level where it can 
withstand potentially negative genetic or demographic impacts; and (4) 
maintain its ability to withstand local- or unit-level environmental 
fluctuations or catastrophes.
    When determining critical habitat boundaries, we made every effort 
to avoid including developed areas such as lands covered by buildings, 
pavement, and other structures or lands used as

[[Page 20850]]

parks or for agriculture, because such lands lack physical or 
biological features necessary for the western yellow-billed cuckoo. The 
scale of the maps we prepared under the parameters for publication 
within the Code of Federal Regulations may not reflect the exclusion of 
such developed lands. Any such lands inadvertently left inside critical 
habitat boundaries shown on the maps of this rule have been excluded by 
text in the rule and are not designated as critical habitat. Therefore, 
a Federal action involving these lands will not trigger section 7 
consultation with respect to critical habitat and the requirement of no 
adverse modification unless the specific action would affect the 
physical or biological features in the adjacent critical habitat.
    We are designating as critical habitat areas that we have 
determined are occupied at the time of listing and are considered to 
still be occupied and that contain one or more of the physical or 
biological features that are essential to support life-history 
processes of the species. This variability is due to environmental 
conditions and the dynamic nature of the habitat used by the western 
yellow-billed cuckoo (see Species Information).
    The critical habitat designation is defined by the map or maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document under Regulation Promulgation. We include more detailed 
information on the boundaries of the critical habitat designation in 
the preamble of this document. We will make the coordinates or plot 
points or both on which each map is based available to the public on 
http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0011 and on our 
website at http://www.fws.gov/sacramento.

Final Critical Habitat Designation

    We are designating 63 units as critical habitat for the western 
yellow-billed cuckoo. The critical habitat areas we describe below 
constitute our current best assessment of areas that meet the 
definition of critical habitat for the western yellow-billed cuckoo. 
The areas we are designating as critical habitat are located in 
Arizona, California, Colorado, Idaho, New Mexico, Texas, and Utah and 
are described below. Table 1 shows the critical habitat units and the 
approximate area of each unit. Land areas identified as ``Other'' 
include county, city, unclassified, or unknown land ownerships.

                                          Table 1--Critical Habitat Units for the Western Yellow-Billed Cuckoo
                                        [Area estimates reflect all land within critical habitat unit boundaries]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Federal              State              Tribal               Other               Total
                 Unit name                    Unit   ---------------------------------------------------------------------------------------------------
                                                         AC        HA        AC        HA        AC        HA        AC        HA        AC        HA
--------------------------------------------------------------------------------------------------------------------------------------------------------
CA-AZ 1 Colorado River 1..................         1                     Excluded under section 4(b)(2) of the Act                           0         0
--------------------------------------------------------------------------------------------------------------------------------------------------------
CA-AZ 2 Colorado River 2..................         2                     Excluded under section 4(b)(2) of the Act                           0         0
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 1 Bill Williams River..................         3                     Excluded under section 4(b)(2) of the Act                           0         0
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 2 Alamo Lake...........................         4                     Excluded under section 4(b)(2) of the Act                           0         0
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 3 Hassayampa River.....................         5        12         5  ........  ........  ........  ........       896       363       908       367
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 4 Agua Fria River......................         6     1,802       729       235        95  ........  ........     1,300       526     3,336     1,350
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 5 Upper Verde Creek....................         7     2,367       958       546       221  ........  ........     2,275       921     5,188     2,100
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 6 Oak Creek............................         8       596       241       160        65  ........  ........     1,475       597     2,231       903
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 7 Beaver Creek.........................         9     1,335       540  ........  ........  ........  ........       747       302     2,081       842
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 8 Lower Verde/West Clear Ck............        10       638       258        30        12  ........  ........     1,466       593     2,134       864
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 9A Horseshoe Dam.......................        11     2,667     1,079  ........  ........  ........  ........  ........  ........     2,667     1,079
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 9B Horseshoe Dam.......................        11       694       281  ........  ........  ........  ........        88        55       782       316
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 10 Tonto Creek.........................        12     2,045       828  ........  ........  ........  ........     1,135       459     3,181     1,287
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 11 Pinal Creek.........................        13                     Excluded under section 4(b)(2) of the Act                           0         0
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 12 Bonita Creek........................        14       828       335  ........  ........  ........  ........       101        41       928       375
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 13 San Francisco River.................        15     1,192       482  ........  ........  ........  ........       135        55     1,327       537
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 14 Upper San Pedro River...............        16    17,957     7,267     1,903       770  ........  ........    11,199     4,532    31,059    12,569
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 15 Lower San Pedro/Gila River..........        17     2,695     1,091     2,280       922  ........  ........    17,421     7,050    22,397     9,064
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 16 Sonoita Creek.......................        18  ........  ........       926       375  ........  ........     1,563       633     2,488     1,007
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 17 Upper Cienega Creek.................        19     4,630     1,874       574       232  ........  ........  ........  ........     5,204     2,106
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 18 Santa Cruz River....................        20       505       204         4         2  ........  ........     9,029     3,654     9,538     3,860
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 19 Black Draw..........................        21       891       360       134        54  ........  ........       570       231     1,595       646
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 20 Gila River 1........................        22       778       315       215        87  ........  ........     9,547     3,863    10,540     4,266
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 21 Salt River..........................        23       502       203  ........  ........  ........  ........        79        32       581       235
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 22 Lower Cienega Creek.................        24  ........  ........       759       307  ........  ........     1,601       648     2,360       955
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 20851]]

 
AZ 23 Blue River..........................        25     1,025       415  ........  ........  ........  ........  ........  ........     1,025       415
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 24 Pinto Creek South...................        26       368       149  ........  ........  ........  ........         5         2       373       151
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 25 Aravaipa Creek......................        27       622       252       116        47  ........  ........     2,199       890     2,937     1,189
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 26 Gila River 2........................        28     1,895       767       204        83  ........  ........     3,736     1,512     5,836     2,362
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 27 Pinto Creek North...................        29       415       168  ........  ........  ........  ........        12         5       427       173
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 28 Mineral Creek.......................        30         1        <1       198        80  ........  ........       180        73       380       154
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 29 Big Sandy River.....................        31     1,291       522  ........  ........  ........  ........     2,945     1,192     4,236     1,714
--------------------------------------------------------------------------------------------------------------------------------------------------------
NM 1 San Francisco River..................        32       738       299        10         4  ........  ........     1,291       522     2,039       825
--------------------------------------------------------------------------------------------------------------------------------------------------------
NM 2 Gila River...........................        33       974       394       194        78  ........  ........     1,867       756     3,036     1,228
--------------------------------------------------------------------------------------------------------------------------------------------------------
NM 3A Mimbres River.......................        34  ........  ........  ........  ........  ........  ........       260       105       260       105
--------------------------------------------------------------------------------------------------------------------------------------------------------
NM 3B Mimbres River.......................        34  ........  ........  ........  ........  ........  ........       284       115       284       115
--------------------------------------------------------------------------------------------------------------------------------------------------------
NM 4 Upper Rio Grande 1...................        35  ........  ........  ........  ........  ........  ........       518       210       518       210
--------------------------------------------------------------------------------------------------------------------------------------------------------
NM 5 Upper Rio Grande 2...................        36                     Excluded under section 4(b)(2) of the Act                           0         0
--------------------------------------------------------------------------------------------------------------------------------------------------------
NM 6A Middle Rio Grande...................        37                     Excluded under section 4(b)(2) of the Act                           0         0
--------------------------------------------------------------------------------------------------------------------------------------------------------
NM 6B Middle Rio Grande...................        37     8,651     3,501    13,064     5,287  ........  ........    24,879    10,068    46,595    18,856
--------------------------------------------------------------------------------------------------------------------------------------------------------
NM 7 Upper Gila River.....................        38     1,086       439       188        76  ........  ........     3,453     1,397     4,727     1,913
--------------------------------------------------------------------------------------------------------------------------------------------------------
NM 8A Caballo Delta North.................        39                     Excluded under section 4(b)(2) of the Act                           0         0
--------------------------------------------------------------------------------------------------------------------------------------------------------
NM 8B Caballo Delta South.................        39                     Excluded under section 4(b)(2) of the Act                           0         0
--------------------------------------------------------------------------------------------------------------------------------------------------------
NM 9 Animas...............................        40                     Excluded under section 4(b)(2) of the Act                           0         0
--------------------------------------------------------------------------------------------------------------------------------------------------------
NM 10 Selden Cyn/Radium Springs...........        41                     Excluded under section 4(b)(2) of the Act                           0         0
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 30 Arivaca Wash/San Luis...............        42     4,662     1,887        89        36  ........  ........     1,014       410     5,765     2,333
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 31 Florida Wash........................        43       449       182       255       103  ........  ........        43        17       747       302
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 32 California Gulch....................        44       376       152  ........  ........  ........  ........       181        73       558       226
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 33 Sycamore Canyon.....................        45       601       243  ........  ........  ........  ........  ........  ........       601       243
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 34 Madera Canyon.......................        46     1,419       574  ........  ........  ........  ........       313       127     1,732       701
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 35 Montosa Canyon......................        47       496       201  ........  ........  ........  ........         3         1       499       202
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 36 Patagonia Mountains.................        48     1,059       429         8         3  ........  ........       845       342     1,912       774
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 37 Canelo Hills........................        49     1,381       559         1        <1  ........  ........     1,440       583     2,822     1,142
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 38 Arivaca Lake........................        50       567       229       417       169  ........  ........       381       154     1,365       553
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 39 Peppersauce Canyon..................        51       317       128  ........  ........  ........  ........        32        13       349       141
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 40 Pena Blanca Canyon..................        52       483       195  ........  ........  ........  ........  ........  ........       483       195
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 41 Box Canyon..........................        53       317       128       184        74  ........  ........        34        14       536       217
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 42 Rock Corral Canyon..................        54       190        77        25        10  ........  ........  ........  ........       214        87
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 43 Lyle Canyon.........................        55       716       290  ........  ........  ........  ........       577       234     1,293       523
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 44 Parker Canyon Lake..................        56     1,424       576  ........  ........  ........  ........        75        30     1,499       607
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 45 Barrel Canyon.......................        57       755       306  ........  ........  ........  ........       164        66       920       372
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 46 Gardner Canyon......................        58     4,320     1,748       290       117  ........  ........       471       191     5,081     2,056
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 47 Brown Canyon........................        59       726       294       228        92  ........  ........       159        64     1,113       451
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 48 Sycamore Canyon/Patagonia...........        60       604       245  ........  ........  ........  ........  ........  ........       604       245
--------------------------------------------------------------------------------------------------------------------------------------------------------
AZ 49 Washington Gulch....................        61       361       146  ........  ........  ........  ........       222        90       585       237
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 20852]]

 
AZ 50 Paymaster Spring/Mowry..............        62       390       158  ........  ........  ........  ........       512       207       903       365
--------------------------------------------------------------------------------------------------------------------------------------------------------
CA 1 Sacramento River.....................        63     2,123       859       485       196  ........  ........    31,593    12,785    34,201    13,841
--------------------------------------------------------------------------------------------------------------------------------------------------------
CA 2 South Fork Kern River................        64        85        34       419       170  ........  ........     1,875       756     2,379       963
--------------------------------------------------------------------------------------------------------------------------------------------------------
ID 1 Snake River 1........................        65     2,863     1,158     1,209       489  ........  ........     1,551       628     5,623     2,276
--------------------------------------------------------------------------------------------------------------------------------------------------------
ID 2 Snake River 2........................        66     5,862     2,372     1,940       785  ........  ........     3,641     1,473    11,442     4,630
--------------------------------------------------------------------------------------------------------------------------------------------------------
ID 3 Henry's Fork/Teton Rivers............        67       756       306       511       207  ........  ........     3,374     1,365     4,641     1,878
--------------------------------------------------------------------------------------------------------------------------------------------------------
CO 1 Colorado River.......................        68       196        79       174        70  ........  ........     2,766     1,119     3,137     1,269
--------------------------------------------------------------------------------------------------------------------------------------------------------
CO 2 North Fork Gunnison..................        69       115        47  ........  ........  ........  ........     2,211       895     2,326       941
--------------------------------------------------------------------------------------------------------------------------------------------------------
UT 1 Green River 1........................        70     4,700     1,902     4,162     1,684  ........  ........     4,411     1,785    13,273     5,371
--------------------------------------------------------------------------------------------------------------------------------------------------------
UT 2 Green River 2........................        71        40        16       632       256  ........  ........       462       187     1,135       459
--------------------------------------------------------------------------------------------------------------------------------------------------------
TX 1 Terlingue Creek/Rio Grande...........        72     7,792     3,153  ........  ........  ........  ........       121        49     7,913     3,202
                                           -------------------------------------------------------------------------------------------------------------
    Totals................................  ........   105,345    42,630    32,769    13,259         0         0   160,726    65,040   298,845   120,939
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding. ``Other'' refers to local, county, unknown, or unclassified ownership.

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for western yellow-billed 
cuckoo, below. We also provide information on special management 
considerations or protection that may be required for the physical or 
biological features essential to the conservation of the species within 
each of those units. The special management considerations include 
actions to address the main threats to western yellow-billed cuckoo 
habitat and are grouped into three categories: (1) Threats from 
alteration of hydrology; (2) threats from floodplain encroachment; and 
(3) other identified threats. These threats and special management 
considerations are summarized in Table 2. See end of table for 
definition of codes.

 Table 2--Threats to Habitat and Potential Special Management Considerations for Critical Habitat Units Designated for the Western Yellow-Billed Cuckoo
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                       Threats from alteration of        Threats from floodplain
      Unit          Name of unit               hydrology                       encroachment                    Other threats              Special mgt.
--------------------------------------------------------------------------------------------------------------------------------------------------------
1..............  CA/AZ-1 Colorado   A, B, C........................  E, F, G, H, I, J...............  K, L, M, N, P..................  R, S, T.
                  River 1.
2..............  CA/AZ-2 Colorado   A, B, C........................  E, F, G, H, I, J...............  K, L, M, N, P..................  R, S, T.
                  River 2.
3..............  AZ-1 Bill          A, B, C........................  ...............................  K, M, N, P.....................  R, T.
                  Williams River.
4..............  AZ-2 Alamo Lake..  B, C, D........................  F..............................  K, M, N, P, Q..................  R, S, T.
5..............  AZ-3 Hassayampa    B, C...........................  E, F, G, H, I, J...............  K, L, M, N, P..................  R, S, T.
                  River.
6..............  AZ-4 Agua Fria     A, B, C........................  F, G, I........................  K, L, M, N, P..................  R, S, T.
                  River.
7..............  AZ-5 Upper Verde   B, C...........................  F, G, I........................  K, M, N, P.....................  R, S, T.
                  River.
8..............  AZ-6 Oak Creek...  B, C...........................  F, G, I........................  K, M, N, P, Q..................  R, S, T.
9..............  AZ-7 Beaver Creek  B, C...........................  F, G, I........................  K, M, N, P.....................  R, S, T.
10.............  AZ-8 Lower Verde   A, B, C........................  F, G, I........................  K, M, N, P.....................  R, S, T.
                  R./West Clear
                  Creek.
11.............  AZ-9A Horseshoe    A, B, C, D.....................  I..............................  K, M, N, P, Q..................  R, S, T.
                  Dam.
11.............  AZ-9B Horseshoe    A, B, C, D.....................  I..............................  K, M, N, P, Q..................  R, S, T.
                  Dam.
12.............  AZ-10 Tonto Creek  B, C, D........................  F, G, I........................  K, M, N, P, Q..................  R, S, T.
13.............  AZ-11 Pinal Creek  B, C...........................  F, G, I, J.....................  K, L, M, N, P..................  R, S, T.
14.............  AZ-12 Bonita       B, C...........................  F, I...........................  K, M, N, P, Q..................  R, S, T.
                  Creek.
15.............  AZ-13 San          B, C...........................  F, I...........................  K, M, N, P.....................  R, S, T.
                  Francisco River.
16.............  AZ-14 Upper San    B, C...........................  E, F, G, I.....................  K, L, M, N, P, Q...............  R, S, T.
                  Pedro River.
17.............  AZ-15 Lower San    A, B, C........................  E, F, G, H, I..................  K, L, M, N, P..................  R, S, T.
                  Pedro and Gila
                  Rivers.
18.............  AZ-16 Sonoita      B, C, D........................  F, G, I........................  K, M, N, P, Q..................  R, S, T.
                  Creek.
19.............  AZ-17 Upper        B, C...........................  F, G, I........................  K, M, N, O, P, Q...............  R, S, T.
                  Cienega Creek.
20.............  AZ-18 Santa Cruz   B, C...........................  E, F, G, H, I..................  K, L, M, N, P..................  R, S, T.
                  River.
21.............  AZ-19 Black Draw.  B, C...........................  F..............................  K, M, N, P.....................  R, S, T.
22.............  AZ-20 Gila River   A, B, C........................  E, F, G, H.....................  K, L, M, N, P..................  R, S, T.
                  1.
23.............  AZ-21 Salt River.  A, B, C, D.....................  F, G, I........................  K, M, N, P.....................  R, S, T.
24.............  AZ-22 Lower        B, C...........................  E, F, G, I, J..................  K, L, M, N, O, P...............  R, S, T.
                  Cienega Creek.
25.............  AZ-23 Blue River.  A, B, C........................  G, I, J........................  K, M, N, P.....................  R, S, T.
26.............  AZ-24 Pinto Creek  A, B, C........................  F, G, I, J.....................  K, N, P........................  R, S, T.
                  South.
27.............  AZ-25 Aravaipa     B, C...........................  E, F, I, J.....................  K, M, N, P.....................  R, S, T.
                  Creek.
28.............  AZ-26 Gila River   A, B, C........................  F, G, I, J.....................  K, N, P........................  R, S, T.
                  2.

[[Page 20853]]

 
29.............  AZ-27 Pinto Creek  B, C...........................  F, I, J........................  K, N, P........................  R, S, T.
                  North.
30.............  AZ-28 Mineral      B, C...........................  E, F...........................  K, O, P, Q.....................  R, S, T.
                  Creek.
31.............  AZ-29 Big Sandy    B, C...........................  E, F, G, I,....................  K, L, N, P, Q..................  R, S, T.
                  River.
32.............  NM-1 San           B, C...........................  E, F, G, H, I..................  K, L, M, N.....................  R, S, T.
                  Francisco River.
33.............  NM-2 Gila River..  B, C...........................  E, F, G, I, J..................  K, L, M, N.....................  R, S, T.
34.............  NM-3A Mimbres      B, C...........................  F, I...........................  K, M, N........................  R, S, T.
                  River.
34.............  NM-3B Mimbres      B, C...........................  F, I...........................  K, M, N........................  R, S, T.
                  River.
35.............  NM-4 Upper Rio     A, B, C........................  E, F, G, H, I..................  K, L, M, N.....................  R, S, T.
                  Grande 1.
36.............  NM-5 Upper Rio     A, B, C........................  E, F, G, H, I, J...............  K, L, M, N.....................  R, S, T.
                  Grande 2.
37.............  NM-6A Middle Rio   A, B, C, D.....................  E, F, G, H, I, J...............  K, L, M, N.....................  R, S, T.
                  Grande.
37.............  NM-6B Middle Rio   A, B, C, D.....................  E, F, G, H, I, J...............  K, L, M, N.....................  R, S, T.
                  Grande.
38.............  NM-7 Upper Gila    B, C...........................  E, F, G, I, J..................  K, L, M, N.....................  R, S, T.
                  River.
39.............  NM-8A Caballo      A, B, C, D.....................  E, F, G, I.....................  K, L, M, N, O, P, Q............  R, S, T.
                  Delta North.
39.............  NM-8B Caballo      A, B, C, D.....................  E, F, G, I.....................  K, L, M, N, O, P, Q............  R, S, T.
                  Delta South.
40.............  NM-9 Animas......  B, C...........................  F..............................  O, P...........................  T.
41.............  NM-10 Selden       A, B, C........................  E, F, G, H, I..................  L, M, N, O, P, Q...............  R, S, T.
                  Canyon and
                  Radium Springs.
42.............  AZ-30 Arivaca      B, C...........................  F, I...........................  K, M, N, P.....................  R, S, T.
                  Wash and San
                  Luis Wash.
43.............  AZ-31 Florida      B, C...........................  E, F, G, I, J..................  K, M, N, P.....................  R, S, T.
                  Wash.
44.............  AZ-32 California   B, C...........................  F, G, I........................  K, M, N, O, P, Q...............  R, S, T.
                  Gulch.
45.............  AZ-33 Sycamore     A, B, C........................  F, G, I........................  K, M, N, O, P, Q...............  R, S, T.
                  Canyon.
46.............  AZ-34 Madera       B, C...........................  F, G, I........................  K, M, N, O, P, Q...............  R, S, T.
                  Canyon.
47.............  AZ-35 Montosa      B, C...........................  F, I...........................  K, M, N, O, P, Q...............  R, S, T.
                  Canyon.
48.............  AZ-36 Patagonia    B, C...........................  F, G, I........................  K, M, N, O, P, Q...............  R, S, T.
                  Mountains.
49.............  AZ-37 Canelo       B, C...........................  F, G, I........................  K, M, N, O, P, Q...............  R, S, T.
                  Hills.
50.............  AZ-38 Arivaca      A, B, C........................  F, G, I, J.....................  K, M, N, O, P, Q...............  R, S, T.
                  Lake.
51.............  AZ-39 Peppersauce  B, C...........................  F, G, I........................  K, M, N, O, P, Q...............  R, S, T.
                  Canyon.
52.............  AZ-40 Pena Blanca  B, C...........................  F, I...........................  K, M, N, O, P, Q...............  R, S, T.
                  Canyon.
53.............  AZ-41 Box Canyon.  B, C...........................  F, G, I........................  K, M, N, O, P, Q...............  R, S, T.
54.............  AZ-42 Rock Corral  B, C...........................  F, I...........................  K, M, N, O, P, Q...............  R, S, T.
                  Canyon.
55.............  AZ-43 Lyle Canyon  B, C...........................  F, I...........................  K, M, N, O, P, Q...............  R, S, T.
56.............  AZ-44 Parker       A, B, C........................  F, G, I........................  K, M, N, O, P, Q...............  R, S, T.
                  Canyon Lake.
57.............  AZ-45 Barrel       A, B, C........................  F, G, I........................  K, M, N, O, P, Q...............  R, S, T.
                  Canyon.
58.............  AZ-46 Gardner      B, C...........................  I..............................  K, M, N, O, P, Q...............  R, S, T.
                  Canyon.
59.............  AZ-47 Brown        B, C...........................  F, I...........................  K, O, P, Q.....................  R, S, T.
                  Canyon.
60.............  AZ-48 Sycamore     B, C...........................  F, I...........................  K, M, N, O, P, Q...............  R, S, T.
                  Canyon.
61.............  AZ-49 Washington   B, C...........................  F, I...........................  K, M, N, O, P, Q...............  R, S, T.
                  Gulch.
62.............  AZ-50 Paymaster    B, C...........................  F, I...........................  K, M, N, O, P, Q...............  R, S, T.
                  Spring.
63.............  CA-1 Sacramento    A, B, C........................  E, F, G, H, I, J...............  K, L, M, N.....................  R, S, T.
                  River.
64.............  CA-2 South Fork    A, B, C, D.....................  E, F, G, H, I..................  K, L, M, N.....................  R, S, T.
                  Kern River.
65.............  ID-1 Snake River   A, B, C, D.....................  E, F, G, H, I..................  K, L, M, N.....................  R, S, T.
                  1.
66.............  ID-2 Snake River   A, B, C........................  E, F, G, H, I..................  K, L, M, N.....................  R, S, T.
                  2.
67.............  ID-3 Henry's Fork  A, B, C........................  E, F, G, H, I..................  K, L, M, N.....................  R, S, T.
                  and Teton Rivers.
68.............  CO-1 Colorado      A, B, C........................  E, F, G, H, I, J...............  K, L, M, N.....................  R, S, T.
                  River.
69.............  CO-2 North Fork    B, C...........................  E, F, G, H, I, J...............  K, L, M, N.....................  R, S, T.
                  Gunnison R..
70.............  UT-1 Green River   A, B, C........................  E, F, G, H, I, J...............  K, L, M, N.....................  R, S, T.
                  1.
71.............  UT-2 Green River   A, B, C........................  E, F, G, H, I, J...............  K, L, M, N.....................  R, S, T.
                  2.
72.............  TX-2 Terlingua     A, B, C........................  ...............................  K, M, N........................  R, S, T.
                  Creek and Rio
                  Grande.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Definition of Codes
Threats from alteration of hydrology:
(A) Change in hydrology from upstream dams;
(B) surface water diversions;
(C) groundwater extraction; and
(D) fluctuating reservoir levels.
Threats from floodplain encroachment:
(E) Agricultural activities;
(F) other development (residential, commercial, etc.);
(G) bank stabilization;
(H) levee construction and maintenance;
(I) road and bridge construction and maintenance; and
(J) gravel mining.
Other threats:
(K) Overgrazing (grazing activities that reduce quality and quantity of breeding habitat);
(L) pesticide drift;
(M) woodcutting;
(N) recreational activities (unauthorized off-highway-vehicle use);
(O) on- or offsite mining (other than gravel mining);
(P) impacts from human-caused wildfires;

[[Page 20854]]

 
(Q) disturbance from human foot traffic, vehicular traffic, and associated noise.
Special management considerations:
(R) Manage hydrology to mimic natural flows and floodplain/drainage processes;
(S) prevent encroachment into floodplain/drainage; and
(T) control expansion of nonnative vegetation where control benefits native vegetation (the positive and negative impacts of nonnative vegetation
  removal should be carefully evaluated if such vegetation is a component of existing habitat (i.e., tamarisk) in areas of altered hydrology).

    It should be noted that the effects of climate change may influence 
streamflow, groundwater, wildfire, nonnative vegetation and other 
aspects of western yellow-billed cuckoo habitat within the proposed 
critical habitat. Because climate change is not a single threat but a 
condition that influences other impacts to habitat, we did not identify 
climate change as a single threat component.
Unit Descriptions
    Below we present brief descriptions of the units, their extent, and 
why the physical or biological features may require special management 
or protection. For readers interested in the underlying information and 
data supporting these unit descriptions, including units being excluded 
(e.g., cited literature, permit reports, and other survey efforts), 
these will be included in the supporting materials posted on http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0011.
    Unit 1: CA/AZ-1 Colorado River 1; Imperial, Riverside, and San 
Bernardino Counties, California, and Yuma and La Paz Counties, Arizona.
    Critical habitat Unit CA/AZ-1 was proposed as containing 82,138 ac 
(33,240 ha) including a 150-mi (242-km) stretch of the Colorado River 
in Arizona and California. We have excluded the entire unit from the 
final designation (see Exclusions). A description and map of this unit 
is maintained in supporting information for this designation (Service 
2020b, entire).
    Unit 2: CA/AZ-2 Colorado River 2; San Bernardino County, California 
and Mohave County, Arizona.
    Critical habitat unit CA/AZ-2 is 23,589 ac (9,546 ha) in extent. It 
is a 23-mi (37-km)-long continuous segment of the Colorado River 
between the Interstate 40 Bridge, including Topock Marsh in San 
Bernardino County, California, and upstream to the Arizona-Nevada 
border in Mohave County, Arizona. We have excluded the entire unit from 
the final critical habitat designation (see Exclusions). A description 
and map of this unit is maintained in supporting information for this 
designation (Service 2020b, entire).
    Unit 3: AZ-1 Bill Williams; Mohave and La Paz Counties, Arizona.
    Critical habitat unit AZ-1 is 3,389 ac (1,371 ha) in extent and is 
a continuous segment of the Bill Williams River, a tributary to the 
Colorado River, from the upstream end of Lake Havasu upstream to 
Castaneda Wash in Mohave and La Paz Counties, Arizona. We have excluded 
the entire unit from the final critical habitat designation (see 
Exclusions). A description and map of this unit is maintained in 
supporting information for this designation (Service 2020b, entire).
    Unit 4: AZ-2 Alamo Lake; Mohave and La Paz Counties, Arizona.
    Critical habitat unit AZ-2 totals 2,793 ac (1,130 ha) in extent and 
is a continuous stream made up of a 6-mi (10-km)-long continuous 
segment of the Santa Maria River and a 3-mi (5-km)-long continuous 
segment of the Big Sandy River that feeds into the Santa Maria River 
above Alamo Lake State Park in Mohave and La Paz Counties, Arizona. We 
have excluded the entire Unit from the final critical habitat 
designation (see Exclusions). A description of this unit is maintained 
in supporting information for this designation (Service 2020b, entire).
    Unit 5: AZ-3 Hassayampa River; Maricopa County, Arizona.
    Critical habitat unit AZ-3 is 908 ac (367 ha) in extent and is an 
approximately 7-mi (11-km)-long continuous segment of the Hassayampa 
River in the vicinity of Wickenburg in Maricopa County, Arizona. 
Approximately 12 ac (5 ha) is in Federal ownership, and 896 ac (363 ha) 
is in other ownership. This unit is considered to have been occupied at 
the time of listing. Western yellow-billed cuckoos occupy and nest at 
this site annually during the breeding season (Corman and Magill 2000, 
pp. 42-43; Kondrat-Smith 2015-2016, entire; Cornell Lab of Ornithology 
2020 (eBird data); Service 2020c). This unit is part of the core area 
as identified in our conservation strategy for designating critical 
habitat for the western yellow-billed cuckoo. The unit provides the 
habitat component provided in PBF 1 and the prey component in PBF 2. 
Hydrologic processes, in natural or altered systems, that provide for 
maintaining and regenerating breeding habitat as identified in PBF 3 
occur within this unit but depend on river flows and flood timing. The 
site also provides a movement corridor and migratory stop-over habitat 
for western yellow-billed cuckoos.
    Much of the private land in this revised proposed unit is within 
The Nature Conservancy's (TNC) and Maricopa County Parks and Recreation 
Department's Hassayampa River Preserve, which is occupied by yellow-
billed cuckoos during the breeding season. Preserve management requires 
management of cottonwood and willow habitat to control nonnative 
species and maintenance of fencing to prevent trespass livestock from 
damaging habitat (Maricopa County Parks and Recreation Department 2018, 
pp. 8, 10). Western yellow-billed cuckoos occupy and nest at this site 
during the breeding season annually Habitat is gallery woodland with 
cottonwood, willow, and mesquite (Kondrat-Smith 2015, entire). Very 
little tamarisk is present in much of the site because the river scours 
out frequently, preventing tamarisk from becoming established.
    Unit 6: AZ-4, Agua Fria River; Yavapai County, Arizona.
    Critical habitat unit AZ-4 is 3,336 ac (1,350 ha) in extent and is 
made up of a continuous segment of the Agua Fria River (called Ash 
Creek above the confluence with Sycamore Creek), which is joined by the 
Sycamore Creek tributary. Other portions of tributaries that are part 
of this unit include Silver Creek, Indian Creek, and Little Ash Creek. 
Together they form a continuous unit located approximately 2.5 mi (4.0 
km) east of Cordes Lakes in Yavapai County, Arizona. Approximately 
1,802 ac (729 ha) is in Federal ownership; 235 ac (95 ha) is in State 
ownership; and 1,300 ac (526 ha) is in other ownership. This unit is 
considered to have been occupied at the time of listing. Western 
yellow-billed cuckoos occupy and nest at this site annually during the 
breeding season (Corman and Magill 2000, pp. 37, 40, 47; Prager and 
Wise 2013, 2014, 2015, 2016, 2017, 2018, 2019, entire). This unit is 
part of the core area as identified in our conservation strategy for 
designating critical habitat for the western yellow-billed cuckoo. BLM 
management to reduce off-road vehicle and grazing pressure has resulted 
in gradual improvement to riparian habitat on its Agua Fria National 
Monument (Prager and Wise 2019, pp. 2-4). Periodic floods on the Agua 
Fria River scour brushy understory and encourage recruitment of 
cottonwood and willows. Other species include sycamore, ash, walnut, 
mesquite, acacia, juniper,

[[Page 20855]]

tamarisk, and adjacent mesquite bosque. The unit provides the habitat 
component provided in PBF 1 and the prey component in PBF 2. Hydrologic 
processes, in natural or altered systems, that provide for maintaining 
and regenerating breeding habitat as identified in PBF 3 occur within 
this unit but depend on river flows and flood timing. The site also 
provides migration stop-over habitat for western yellow-billed cuckoos 
moving farther north. Altered hydrology has caused the introduction and 
spread of nonnative tamarisk, resulting in reduced quality of riparian 
habitat. Although tamarisk is not as desirable as native habitat, it 
may contribute toward habitat suitability in areas where the native 
tree density can no longer be sustained.
    Unit 7: AZ-5, Upper Verde River; Yavapai County, Arizona.
    Critical habitat unit AZ-5 is 5,188 ac (2,100 ha) in extent. We 
have excluded approximately 272 ac (110 ha) of State land associated 
with the AGFD's Upper Verde River Wildlife Area and 191 ac (77 ha) of 
Yavapai-Apache tribal land from this unit (see Exclusions). This unit 
extends from approximately 0.6 mi (0.9 km) east of State Route 89 to I-
17 in Yavapai County. Short reaches of Granite Creek, Peck's Lake and 
Tavasci Marsh, and Sycamore Creek are also included in this unit. 
Approximately 2,367 ac (958 ha) is in Federal ownership; 546 ac (221 
ha) is in State ownership; and 2,275 ac (921 ha) is in other ownership. 
This unit is considered to have been occupied at the time of listing. 
Western yellow-billed cuckoos occupy and nest at numerous locations 
throughout this unit (Holmes et al. 2008, pp. 13, 16, 18-20; Johnson 
and Rakestraw 2016, pp. 6-7; AGFD 2017, entire; AGFD 2019, entire; 
Jacobs Engineering 2019, pp. 2-9; Prescott National Forest, 2019, 
entire; SRP 2019c, entire; Cornell Lab of Ornithology 2020 (eBird 
data); National Audubon Society 2020f; Service 2020c, entire). This 
unit is part of the core area as identified in our conservation 
strategy for designating critical habitat for the western yellow-billed 
cuckoo. The unit provides the habitat component provided in PBF 1 and 
the prey component in PBF 2. Hydrologic processes, in natural or 
altered systems, that provide for maintaining and regenerating breeding 
habitat as identified in PBF 3 occur within this unit but depend on 
river flows and flood timing. This site also provides a movement 
corridor and migratory stop-over habitat for western yellow-billed 
cuckoos.
    Habitat is primarily cottonwood and willow gallery riparian forest, 
and may contain other species such as ash, sycamore, mesquite, 
boxelder, walnut, juniper, alder, desert willow, hackberry, tamarisk, 
and Russian olive, often with adjacent mesquite woodland (Agyagos 2016, 
entire, Prescott National Forest 2019, entire). The Upper Verde State 
Wildlife and Tuzigoot and IBAs lie within this unit (National Audubon 
Society 2016b, entire; 2020a, entire; Arizona Important Bird Areas 
(IBA) 2020c, entire).
    Unit 8: AZ-6 Oak Creek; Yavapai and Coconino Counties, Arizona.
    Critical habitat unit AZ-6 is 2,231 ac (903 ha) and is a continuous 
segment of Oak Creek from the State Highway 179 Bridge within the City 
of Sedona in Coconino County, Arizona, downstream to the confluence 
with the Verde River in Yavapai County, Arizona. Approximately 596 ac 
(241 ha), is in Federal ownership; 160 ac (65 ha) is in State 
ownership; and 1,475 ac (597 ha) is in other ownership. This unit is 
considered to have been occupied at the time of listing and is occupied 
by western yellow-billed cuckoos during the breeding season (Corman and 
Magill 2000, p. 42; Holmes et al. 2008, pp. 13, 16, 18-20; Agyagos 
2016, entire, AGFD 2018, entire; Cornell Lab of Ornithology 2020 (eBird 
data); Service 2020c). This unit is part of the core area as identified 
in our conservation strategy for designating critical habitat for the 
western yellow-billed cuckoo. The unit provides the habitat component 
provided in PBF 1 and the prey component in PBF 2. Hydrologic 
processes, in natural or altered systems, that provide for maintaining 
and regenerating breeding habitat as identified in PBF 3 occur within 
this unit but depend on river flows and flood timing. The site also 
provides a movement corridor and migratory stop-over habitat for 
western yellow-billed cuckoos.
    This unit contains the Lower Oak Creek Important Bird Area (IBA), 
where western yellow-billed cuckoos are identified as a breeding bird 
(National Audubon Society 2016a, entire). Vegetation is a mix of 
riparian gallery of cottonwood, willow, sycamore, and mesquite and 
hackberry woodland (National Audubon Society 2016a, entire). The reach 
from Cornville to the confluence with the Verde River contains the best 
broad[hyphen]valley floodplain and mesquite bosque habitat on Oak Creek 
(Agyagos 2016, entire). The Oak Creek confluence with the Verde River 
consists of an approximately 98-ft (30-m)-wide riparian area, with 
mesquite habitat adjacent to the riparian vegetation (Johnson and 
Rakestraw 2016, p. 6). Sycamore and boxelder are the dominant trees at 
the confluence, with scattered cottonwood and some willow and tamarisk 
trees.
    Unit 9: AZ-7 Beaver Creek; Yavapai County, Arizona.
    Critical habitat unit AZ-7 is 2,081 ac (842 ha) in extent and is a 
23-mi (37-km)-long continuous segment of Beaver Creek from the 
confluence with the Verde River near Camp Verde upstream to above the 
Town of Rimrock in Yavapai County, Arizona. We have excluded 
approximately 1 ac (<1 ha) of land from this unit (see Exclusions). 
Approximately 1,335 ac (540 ha) is Federal land; and 746 ac (302 ha) is 
in other ownership. The unit is considered to have been occupied at the 
time of listing. Western yellow-billed cuckoo occupy and nest in this 
unit during the breeding season (Corman and Magill 2000, pp. 11, 37-41; 
Holmes et al. 2008, pp. 13, 16, 18-20; Cornell Lab of Ornithology 2020 
(eBird data); Service 2020c, entire). This unit is part of the core 
area as identified in our conservation strategy for designating 
critical habitat for the western yellow-billed cuckoo. The unit 
provides the habitat component provided in PBF 1 and the prey component 
in PBF 2. Hydrologic processes, in natural or altered systems, that 
provide for maintaining and regenerating breeding habitat as identified 
in PBF 3 occur within this unit but depend on river flows and flood 
timing. In a larger study of the Verde River watershed that included 13 
survey locations within the Beaver Creek critical habitat complex, 
Holmes et al. (2008, pp. 13, 16, 27) found yellow-billed cuckoos occupy 
sites that contain relatively large areas of deciduous riparian 
habitat, at least 100 m (328 ft) wide, with dominant tree species 
comprising mainly of cottonwood, willow, alder, and sycamore and with 
adjacent patches of mesquite greater than 12 ac (5 ha) in size. Habitat 
at occupied survey locations within this unit is native (Holmes et al. 
2008, p. 23). The site also provides migratory stop-over habitat for 
western yellow-billed cuckoos moving farther north.
    Unit 10: AZ-8 Lower Verde River and West Clear Creek; Yavapai 
County, Arizona.
    Unit AZ-8 is 2,134 ac (864 ha) in extent and is a 17-mi (27-km) 
long continuous segment of the Verde River extending from the I-17 
Verde River Bridges downstream to Beasley Flat, Prescott National 
Forest, and includes 5 mi (8 km) of the West Clear Creek tributary. We 
have excluded approximately 44 ac (18 ha) of Yavapai-Apache Nation land 
from this unit (see

[[Page 20856]]

Exclusions). After exclusion, approximately 638 ac (258 ha) is in 
Federal ownership; 30 ac (12 ha) is in State ownership; and 1,466 ac 
(593 ha) is in other ownership. Mitigation conservation property along 
the Verde River that supports nesting western yellow-billed cuckoos was 
not considered for exclusion. The unit is considered to have been 
occupied at the time of listing. Western yellow-billed cuckoos occupy 
and breed in this unit during the breeding season (Corman and Magill 
2000, pp. 38, 45-46, 48; Holmes et al. 2008, pp. 13, 16, 27; Prescott 
National Forest 2019, entire; AGFD 2018, entire; SRP 2019c, entire; 
Cornell Lab of Ornithology 2020 (eBird); Service 2020c). This unit is 
part of the core area as identified in our conservation strategy for 
designating critical habitat for the western yellow-billed cuckoo. This 
unit is part of the Lower Verde River IBA (Arizona IBA 2020b, entire; 
National Audubon Society 2020a, entire). The unit provides the habitat 
component provided in PBF 1 and the prey component in PBF 2. Hydrologic 
processes, in natural or altered systems, that provide for maintaining 
and regenerating breeding habitat as identified in PBF 3 occur within 
this unit but depend on river flows and flood timing. This unit also 
provides a movement corridor as well as migratory stop-over habitat for 
western yellow-billed cuckoos.
    A number of NGO organizations, including Friends of Verde River 
Greenway and The Nature Conservancy, are working on efforts to restore 
and maintain an appropriate level of base flows in the Verde River to 
sustain ecological functions (Arizona IBA 2020b, entire). Dominant 
vegetation is cottonwood and willow with lesser amounts of sycamore, 
ash, and tamarisk (Prescott National Forest 2019, entire). Mesquite 
bosque flanks parts of the riparian forest. Altered hydrology has 
caused the introduction and spread of nonnative tamarisk, resulting in 
reduced quality of riparian habitat. Although tamarisk is not as 
desirable as native habitat, it may contribute toward habitat 
suitability in areas where the native tree density can no longer be 
sustained.
    Unit 11: AZ-9A and AZ-9B Horseshoe Dam; Gila, Maricopa, and Yavapai 
Counties, Arizona.
    Critical habitat in these two subunits is 3,449 ac (1,395 ha) (AZ-
9A 2,667 ac (1,079 ha)); (AZ-9B 782 ac (316 ha)) in extent and is a 
continuous segment of the Verde River immediately upstream of Horseshoe 
Dam and a continuous segment of the Verde River immediately downstream 
of Horseshoe Dam in Yavapai County, Arizona. We have excluded 
approximately 387 ac (161 ha) from (AZ-9A 76 ac (31 ha) and AZ-9B 311 
ac (130 ha)) of land from the Units AZ-9AB (see Exclusions). All lands 
are in Federal ownership. The unit is considered to have been occupied 
at the time of listing, and the western yellow-billed cuckoo breeds at 
this site annually (Corman and Magill 2000, pp. 37, 41; SRP 2011a, pp. 
18, 19; Dockens and Ashbeck 2011a, 2015, entire; AGFD 2018, entire; SRP 
2017a, pp. A1-G2; Cornell Lab of Ornithology 2020 (eBird data); Service 
2020c). This unit is part of the core area as identified in our 
conservation strategy for designating critical habitat for the western 
yellow-billed cuckoo. The unit provides the habitat component provided 
in PBF 1 and the prey component in PBF 2. Hydrologic processes, in 
natural or altered systems, that provide for maintaining and 
regenerating breeding habitat as identified in PBF 3, occur within this 
unit but depend on river flows and flood timing. This unit also 
provides a movement corridor as well as migratory stop-over habitat for 
western yellow-billed cuckoos.
    This unit includes part of the Salt and Verde Riparian Ecosystem 
IBA, with western yellow-billed cuckoos identified as a breeding bird 
(National Audubon Society 2016b, entire). Riparian cottonwood-willow 
galleries and mixed riparian stands of native and tamarisk habitat 
exist both above and below Horseshoe Dam, although some of these stands 
occur as narrow strands along the Verde River (SRP 2008, p. 61). 
Habitat consists of contiguous to patchy cottonwood, willow, tamarisk, 
and mesquite (SRP 2011a, p. 18). Altered hydrology has caused the 
introduction and spread of nonnative tamarisk. Although tamarisk is not 
as desirable as native habitat, it contributes toward habitat 
suitability in areas where the native tree density can no longer be 
sustained.
    Unit 12: AZ-10 Tonto Creek; Gila County, Arizona.
    Critical habitat unit AZ-10 is 3,181 ac (1,287 ha) in extent and is 
made up of a continuous segment of Tonto Creek ending at the 2,151-ft 
(656-m) elevation line, which represents the lakebed at Theodore 
Roosevelt Lake in Gila County, Arizona. We have excluded approximately 
489 ac (198 ha) of land from this unit (see Exclusions). Approximately 
2,045 ac (828 ha) is in Federal ownership, and 1,135 ac (459 ha) is in 
other ownership. The unit is considered to have been occupied at the 
time of listing. Western yellow-billed cuckoos occupy and nest in this 
unit during the breeding season (Corman and Magill 2000, pp. 37, 40, 
41, 51; Johnson et al. 2004, 2005, 2006, 2007, entire; SRP 2005, p. 5; 
Archaeological Consulting Services, Ltd. 2016, entire; 2017, pp. 2-10; 
2018, p. 3; 2019, entire; SRP 2017b, p. 28; AGFD 2018, entire; Cornell 
Lab of Ornithology 2020 (eBird data); Service 2020c, entire). This unit 
is part of the core area as identified in our conservation strategy for 
designating critical habitat for the western yellow-billed cuckoo. The 
unit provides the habitat component provided in PBF 1 and the prey 
component in PBF 2. Hydrologic processes, in natural or altered 
systems, that provide for maintaining and regenerating breeding habitat 
as identified in PBF 3 occur within this unit but depend on river flows 
and flood timing. Dominant riparian habitat in this unit is cottonwood, 
willow, and tamarisk. Mesquite bosque is adjacent to the riparian 
habitat in some areas of Tonto Creek (Archaeological Consulting 
Services, Ltd 2018, entire). The site also provides a movement corridor 
and migratory stop-over habitat for western yellow-billed cuckoos 
moving farther north. Altered hydrology has caused the introduction and 
spread of nonnative tamarisk resulting in reduced quality of riparian 
habitat. Although tamarisk is not as desirable as native habitat, it 
may contribute toward habitat suitability in areas where the native 
tree density can no longer be sustained. Tamarisk is a component of 
habitat in this unit and may provide understory or nesting habitat for 
the western yellow-billed cuckoo.
    Unit 13: AZ-11 Pinal Creek; Gila County, Arizona.
    Critical habitat unit AZ-11 is 419 ac (169 ha) and is a 3-mi (5-
km)-long continuous segment of Pinal Creek, approximately 4-mi (6-km) 
upstream of the confluence with the Salt River north of the Town of 
Globe in Gila County, Arizona. We have excluded the entire unit from 
the final designation (see Exclusions). A description and map of this 
unit is maintained in supporting information for this designation 
(Service 2020b, entire).
    Unit 14: AZ-12 Bonita Creek; Graham County, Arizona.
    Critical habitat unit AZ-12 is 928 ac (375 ha) in extent and is an 
11-mi (17-km)-long continuous segment of Bonita Creek, a tributary of 
the Gila River, and an 8-mi (13-km)-long continuous segment of the Gila 
River extending upstream and downstream of the confluence with Bonita 
Creek, located northeast of the Town of Safford in Graham County, 
Arizona. Approximately 828 ac (335 ha) is in Federal ownership, and 101 
ac (41 ha) is in other ownership. The BLM's Gila

[[Page 20857]]

Box Riparian National Conservation Area, established by Congress to 
conserve, protect, and enhance the riparian values of the area, 
includes Bonita Creek. The unit is considered to have been occupied at 
the time of listing. Western yellow-billed cuckoo occupy and nest in 
the unit during the breeding season (Corman and Magill 2000, p. 49; 
AGFD 2018, entire; Reclamation 2019, entire; Cornell Lab of Ornithology 
2020 (eBird)). This unit is part of the core area as identified in our 
conservation strategy for designating critical habitat for the western 
yellow-billed cuckoo. The unit provides the habitat component provided 
in PBF 1 and the prey component in PBF 2. Hydrologic processes, in 
natural or altered systems, that provide for maintaining and 
regenerating breeding habitat as identified in PBF 3 occur within this 
unit but depend on river flows and flood timing. The site also provides 
a movement corridor between larger habitat patches. Habitat consists of 
mesquite bosque and riparian habitat dominated by cottonwood and willow 
(AGFD 2018, entire). Altered hydrology has caused the introduction and 
spread of nonnative tamarisk resulting in reduced quality of riparian 
habitat. Although tamarisk is not as desirable as native habitat, it 
may contribute toward habitat suitability in areas where the native 
tree density can no longer be sustained.
    Unit 15: AZ-13 San Francisco River; Greenlee County, Arizona.
    Critical habitat unit AZ-13 is 1,327 ac (537 ha) in extent and is a 
4-mi (6-km)-long continuous segment of the San Francisco River that 
includes a continuous segment of a tributary called Dix Creek located 
approximately 6 mi (9.6 km) west of the border with New Mexico in 
Greenlee County, Arizona. Approximately 1,192 ac (482 ha) is in Federal 
ownership, and 135 ac (55 ha) is in other ownership. The unit is 
considered to have been occupied at the time of listing, and is used by 
the western yellow-billed cuckoo during the breeding season (AGFD 2018, 
entire; Corman and Magill 2000, pp. 38-39, 44; Cornell Lab of 
Ornithology 2020, (eBird data)); Reclamation 2020b, p. 6.2.2). This 
unit is part of the core area as identified in our conservation 
strategy for designating critical habitat for the western yellow-billed 
cuckoo. The unit provides the habitat component provided in PBF 1 and 
the prey component in PBF 2. Hydrologic processes, in natural or 
altered systems, that provide for maintaining and regenerating breeding 
habitat as identified in PBF 3 occur within this unit but depend on 
river flows and flood timing. The site also provides a movement 
corridor between larger habitat patches. This unit is part of the Blue 
and San Francisco Rivers IBA. Riparian habitat is dominated by 
cottonwood, willow, alder, and sycamore. Mesquite, walnut, oak, and 
juniper may also be present (Corman and Magill 2000, pp. 15-16; 
National Audubon Society 2020c; entire).
    Unit 16: AZ-14 Upper San Pedro River; Cochise County, Arizona.
    Critical habitat Unit AZ-14 is 31,059 ac (12,569 ha) in extent and 
is an 84-mi (135-km)-long segment of the Upper San Pedro River from the 
border with Mexico north to nearly the community of Redington in 
Cochise County, Arizona. We have excluded the 60-ft (18-m) Roosevelt 
Reservation from this unit (see Exclusions). Approximately 17,957 ac 
(7,267 ha) is in Federal ownership; 1,903 ac (770 ha) is in State 
ownership; and 11,199 ac (4,532 ha) is in other ownership. The unit is 
considered to have been occupied at the time of listing. The upper San 
Pedro River is known as supporting one of the largest nesting 
populations of western yellow-billed cuckoo s along a free-flowing 
river during the breeding season. This unit is part of the core area as 
identified in our conservation strategy for designating critical 
habitat for the western yellow-billed cuckoo. The unit provides the 
habitat component provided in PBF 1 and the prey component in PBF 2. 
Hydrologic processes, in natural or altered systems, that provide for 
maintaining and regenerating breeding habitat as identified in PBF 3 
occur within this unit but depend on river flows and flood timing. This 
unit also provides a movement corridor and migratory stop-over habitat 
for western yellow-billed cuckoos.
    This unit not only includes gallery riparian habitat dominated by 
cottonwood and willow, but also a large adjacent mesquite bosque, where 
western yellow-billed cuckoos also nest and forage (Corman and Magill 
2000, pp. 11, 39-40, 44, 50; Cascabel Conservation Association 2014, 
entire; EEC 2002, pp. ES-1, 6, 10, 11; Halterman 2002, pp. 10, 22; 
Halterman 2003, pp. 9, 23; Halterman 2004, pp. 9, 33-34; Halterman 
2005, pp. 8, 22-23; Halterman 2006, pp. 26-27, 31; Halterman 2007, pp. 
5, 11; Halterman 2009, p. 23; Swanson 2014, entire; AGFD 2018, entire; 
Cornell Lab of Ornithology 2020 (eBird data); Service 2020c, entire). 
Western yellow-billed cuckoos have been found nesting in mesquite 
bosque as far away as 0.3 mi (0.5 km) from the adjacent upper San Pedro 
River (Halterman 2006, p. 31). Other species include walnut, soapberry, 
ash, Mexican elder, acacia, and mimosa (EEC 2002, p. 14).
    Much of this mesquite habitat is composed of large mature trees. 
Western yellow-billed cuckoos were documented during 2014 surveys on 
the Babocomari River portion of this unit in habitat that is not as 
dense as on the San Pedro River, including narrow habitat with low 
stature and scattered riparian and mesquite trees (Swanson 2014, 
entire). Altered hydrology has caused the introduction and spread of 
nonnative tamarisk resulting in reduced quality of riparian habitat. 
Although tamarisk is not as desirable as native habitat, it contributes 
toward habitat suitability in areas where the native tree density can 
no longer be sustained.
    Most of this unit lies within the San Pedro Riparian National 
Conservation Area and the San Pedro Riparian National Conservation Area 
IBA (National Audubon Society 2016c, entire). The IBA supports 100 
species of breeding birds, and 250 species of migrant and wintering 
birds (National Audubon Society 2016c, entire). The 40 mi (64 km) of 
the upper San Pedro River was designated by Congress as a Riparian 
National Conservation Area in 1988. The primary purpose for the special 
designation is to protect and enhance the desert riparian ecosystem, a 
rare remnant of what was once an extensive network of similar riparian 
systems throughout the American Southwest. Part of this unit is within 
the Lower San Pedro River IBA (National Audubon Society 2016h, entire). 
The conservation property, Three Links Farm consisting of 2,156 ac (873 
ha), was purchased by TNC to protect the San Pedro River and its 
riparian habitat. Reclamation holds a conservation easement on part of 
the property. Western yellow-billed cuckoos nest in the cottonwood and 
willow dominated gallery forest and mesquite bosque. The Cascabel 
Conservation Association (2014, entire), a non-profit corporation of 
local landowners near the community of Cascabel dedicated to the 
collaborative stewardship of the Middle San Pedro River watershed, 
provided western yellow-billed cuckoo data collected during the 
breeding season in support of designation of critical habitat. The 
Friends of the San Pedro River, a non-profit organization dedicated to 
the conservation and restoration of the river through advocacy, 
education, and interpretation supports designation of critical habitat.
    Unit 17: AZ-15 Lower San Pedro and Gila Rivers; Pima, Pinal and 
Gila Counties, Arizona.

[[Page 20858]]

    Critical habitat unit AZ-15 is 22,397 ac (9,064 ha) in extent and 
is a 119-mi (192-km)-long segment of the Lower San Pedro River from 
just north of the community of Redington in Pima County downstream for 
approximately 49 mi (78 km) to its confluence with the Gila River. The 
Gila River segment continues downstream for approximately 39 mi (63 km) 
to the area of the Ashurst-Hayden Dam. A segment of the unit continues 
upstream to Porphyry Gulch in Pinal County, Arizona. In the revised 
proposed rule, we identified approximately 729 ac (295 ha) of San 
Carlos Apache parcel land in this unit for exclusion. After 
publication, we identified an additional 185 ac (75 ha) along the Lower 
San Pedro River between Aravaipa Creek and the Gila River confluence, 
totaling approximately 914 ac (370 ha) of San Carlos Apache lands. 
However, due to revisions of the area considered as critical habitat 
between the revised proposed rule and this final designation, the area 
upstream of Prophyry Gulch on the Gila River was removed. As a result, 
the total area of Tribal lands we are excluding in Unit 17 is 
approximately 445 ac (184 ha). (see Exclusions, Tribal Lands). The San 
Carlos Apache parcels along the lower San Pedro River between Aravaipa 
Creek and the Gila River confluence are within a riparian corridor 
occupied by western yellow-billed cuckoos (Service 2013, pp. 349, 387). 
These small parcels are likely within the home range of foraging and 
breeding western yellow-billed cuckoos. Approximately 2,695 ac (1,091 
ha) is in Federal ownership; 2,280 ac (922 ha) is in State ownership; 
and 17,421 ac (7,050 ha) is in other ownership. The unit is considered 
to have been occupied at the time of listing. This unit is an important 
breeding area for western yellow-billed cuckoos and is consistently 
occupied by a number of pairs during the breeding season (Corman and 
Magill 2000, pp. 38-40, 42-44, 49-50; SRP 2005, pp. 7-24; SRP 2011b, 
pp. 22-37; SRP 2015, p. 29; Andreson 2016b, entire; AGFD 2018, entire; 
Murray and Gicklhorn 2018, pp. 14-15; National Audubon Society 2016h, 
entire; Reclamation 2019 entire; SRP 2019b, pp. 29-31; Service 2020c, 
entire). We removed a portion of critical habitat that was previously 
identified in the revised proposed rule because habitat upstream of 
Porphyry Gulch on the Gila River is narrower and patchier than the rest 
of the unit. In part of the removed reach, the Gila River flows through 
a narrow canyon with limited space for habitat to develop. Several 
mitigation conservation properties along the San Pedro River that 
support nesting western yellow-billed cuckoos were not considered for 
exclusion. The unit provides the habitat component provided in PBF 1 
and the prey component in PBF 2. Hydrologic processes, in natural or 
altered systems, that provide for maintaining and regenerating breeding 
habitat as identified in PBF 3 occur within this unit but depend on 
river flows and flood timing. The site also provides a movement 
corridor and migratory stop-over location for western yellow-billed 
cuckoos moving farther north. Altered hydrology has caused the 
introduction and spread of nonnative tamarisk resulting in reduced 
quality of riparian habitat. Although tamarisk is not as desirable as 
native habitat, it may contribute toward habitat suitability in areas 
where the native tree density can no longer be sustained. Tamarisk is a 
component of habitat in this unit and may provide understory or nesting 
habitat for the western yellow-billed cuckoo.
    The entire lower San Pedro reach is included in the Lower San Pedro 
River IBA (National Audubon Society 2016h, entire) and consists of 
cottonwood and Goodding's willow gallery forest riparian habitat is 
interspersed with old growth honey mesquite (Prosopis juliflora) 
woodland bosques. Other species include hackberry, ash, coyote willow, 
greythorn, and buttonbush (Murray and Gicklhorn 2018, p. 14). 
Surrounding habitat is desert scrub. The largest intact mesquite bosque 
community remaining in Arizona is the 14-mi (23-km) reach of the San 
Pedro River beginning south of San Manuel and ending north of Mammoth. 
Many conservation properties occur in this unit, most of which were 
purchased as mitigation for projects that impacted riparian resources. 
They include Pima County's Bingham Cienega in Pima County; SRP's San 
Pedro River Preserve, Spirit Hollow, Adobe Preserve, Stillinger 
Preserve; Resolution Copper's 7B Ranch, BHP-Biliton property; AGFD's 
Lower San Pedro River Wildlife Area, and Reclamation's Cook's Lake/
Cienega Seep. BLM property exists along the San Pedro River as well. 
Conservation partnerships among these landowners to protect habitat 
include the Lower San Pedro Watershed Alliance (2014, entire), Lower 
San Pedro Watershed Collaborative, and Lower San Pedro Working Group 
(SRP 2019b, p. 37).
    Unit 18: AZ-16 Sonoita Creek; Santa Cruz County, Arizona.
    Critical habitat Unit AZ-16 is 2,488 ac (1,007 ha) in extent and is 
a 16-mi (26-km)-long segment of Sonoita Creek from the Town of 
Patagonia downstream to a point on the creek approximately 4 mi (6 km) 
east of the Town of Rio Rico in Santa Cruz County, Arizona. 
Approximately 926 ac (375 ha) is in State ownership, and 1,563 ac (633 
ha) is in other ownership. This unit is considered to have been 
occupied at the time of listing. Western yellow-billed cuckoos nest 
throughout this unit during the breeding season (Corman and Magill 
2000, pp. 38-40, 45, 51; Kingsley and Gaiennie 2005, entire; Tucson 
Audubon Society 2012, entire; AGFD 2018, entire; Cornell Lab of 
Ornithology 2020 (eBird data); Service 2020c, entire). This unit is 
part of the core area as identified in our conservation strategy for 
designating critical habitat for the western yellow-billed cuckoo. The 
unit provides the habitat component provided in PBF 1 and the prey 
component in PBF 2. Hydrologic processes, in natural or altered 
systems, that provide for maintaining and regenerating breeding habitat 
as identified in PBF 3 occur within this unit but depend on river flows 
and flood timing. This site also provides a movement corridor and 
migratory stop-over habitat for western yellow-billed cuckoos.
    The perennial flow in Sonoita Creek supports a diverse gallery 
cottonwood and Goodding's willow forest that includes walnut, mesquite, 
ash, hackberry, and various willow species in this rare southeastern 
Arizona ecosystem (National Audubon Society 2016d, entire). This unit 
includes Patagonia State Park, Sonoita Creek State Natural Area, 
Patagonia-Sonoita Creek TNC Preserve, and the Tucson Audubon Society's 
Paton Center for Hummingbirds. The Patagonia-Sonoita Creek TNC Preserve 
IBA lies within this unit, under conservation stewardship by state 
parks, TNC, and Tucson Audubon Society (National Audubon Society 2016d, 
entire).
    Unit 19: AZ-17, Upper Cienega Creek; Pima County, Arizona.
    Critical habitat Unit AZ-17 is 5,204 ac (2,106 ha) in extent and is 
an 11-mi (18-km)-long segment of Cienega Creek. Approximately 4,630 ac 
(1,874 ha) is in Federal ownership, and 574 ac (232 ha) is in State 
ownership. This unit is considered to have been occupied at the time of 
listing, and is used by the western yellow-billed cuckoo during the 
breeding season (Corman and Magill 2000, pp. 38-39, 40, 44, 48; BLM 
2010, 2003, entire; AGFD 2018, entire; Cornell Lab of Ornithology 2020 
(eBird data); Service 2020c, entire). This unit is part of the core 
area as identified in our conservation strategy for designating 
critical habitat for the western yellow-billed cuckoo. The unit 
provides the

[[Page 20859]]

habitat component provided in PBF 1 and the prey component in PBF 2. 
Hydrologic processes, in natural or altered systems, that provide for 
maintaining and regenerating breeding habitat as identified in PBF 3 
occur within this unit but depend on river flows and flood timing. This 
unit also provides a movement corridor and migratory stop-over habitat 
for western yellow-billed cuckoos. This unit connects Gardner Canyon 
(AZ-46) with upper Cienega Creek. BLM's Las Cienegas National 
Conservation Area, also designated as the Las Cienegas NCA IBA, 
includes cienegas (marshlands) and cottonwood and willow riparian 
forests, and mesquite bosques bisecting sacaton (Sporobolus sp.) 
grasslands and semi-desert grasslands (National Audubon Society 2020d, 
entire).
    Unit 20: AZ-18 Santa Cruz River; Santa Cruz County, Arizona.
    Critical habitat Unit AZ-18 is 9,538 ac (3,860 ha) in extent and is 
a 27-mi (43-km)-long segment of the Santa Cruz River from the U.S./
Mexico border north to the vicinity of the Town of Tubac in Santa Cruz 
County, Arizona. We have excluded the 60-ft (18-m) Roosevelt 
Reservation from this unit (see Exclusions). Approximately 505 ac (204 
ha) is in Federal ownership; 4 ac (2 ha) is in State ownership; and 
9,029 ac (3,654 ha) is in other ownership. This unit is considered to 
have been occupied at the time of listing. Western yellow-billed 
cuckoos occupy and nest in numerous locations along the Santa Cruz 
River and tributaries during the breeding season, including a 
concentration of nesting yellow-billed cuckoos within the Tumacacori 
area (Corman and Magill 2000, pp. 14, 39, 40, 50; Powell 2000, entire; 
Krebbs and Moss 2009, entire; Baril et al. 2019, p. 85; National 
Audubon Society 2016e, entire; Cornell Lab of Ornithology 2020 (eBird 
data); Service 2020c, entire). This unit is part of the core area as 
identified in our conservation strategy for designating critical 
habitat for the western yellow-billed cuckoo. The unit provides the 
habitat component provided in PBF 1 and the prey component in PBF 2. 
Hydrologic processes, in natural or altered systems, that provide for 
maintaining and regenerating breeding habitat as identified in PBF 3 
occur within this unit but depend on river flows and flood timing. Some 
portions of the unit are considered disturbed and may not contain all 
the physical or biological features essential to the conservation of 
the species, but due to our mapping constraints, some of these areas 
were left within the boundaries of the unit. These disturbed areas not 
containing the physical or biological features would not be considered 
critical habitat. The site also provides a movement corridor and 
migratory stop-over habitat for western yellow-billed cuckoos.
    This unit is within the Upper Santa Cruz IBA, with western yellow-
billed cuckoos identified as a breeding species (National Audubon 
Society 2016e, entire). The Upper Santa Cruz River IBA is a linear 
riparian corridor from Tumacacori National Historical Park downstream 
(northward) through the Tucson Audubon Society-held conservation 
easement (National Audubon Society 2016e, entire). This reach of river 
has the highest groundwater levels and perennial river flow, primarily 
treated wastewater, but with some groundwater seep augmentation. The 
IBA boundaries are defined by the cottonwood and willow riparian 
vegetation, including the mesquite bosques that border the broadleaf 
gallery forest and elderberry thickets (Powell 2000, p. 5). The IBA 
also includes all the National Historical Park and Tucson Audubon 
Society-held conservation easement lands.
    Unit 21: AZ-19 Black Draw; Cochise County, Arizona.
    Critical habitat Unit AZ-27 is 1,595 ac (646 ha) in extent. 
Approximately 891 ac (360 ha) is in Federal ownership; 134 ac (54 ha) 
is in State ownership; and 570 ac (231 ha) is in other ownership. We 
have excluded the 60-ft (18-m) Roosevelt Reservation from this unit 
(see Exclusions). This unit is considered to have been occupied at the 
time of listing and is used by the western yellow-billed cuckoo during 
the breeding season (Corman and Magill 2000, pp. 39, 50; Radke 2014, 
pp. 57-58, 112; Cajero 2016, entire; Radke 2017, pp. 41-42; AGFD 2018, 
entire; Cajero 2018, entire; Radke 2019, pp. 26, 84, 88; Radke 2020, 
pp. 40-41; Service 2020c, entire). This unit is part of the core area 
as identified in our conservation strategy for designating critical 
habitat for the western yellow-billed cuckoo. The unit provides the 
habitat component provided in PBF 1 and the prey component in PBF 2. 
Hydrologic processes, in natural or altered systems, that provide for 
maintaining and regenerating breeding habitat as identified in PBF 3 
occur within this unit but depend on river flows and flood timing. The 
site also provides a movement corridor and migratory stop-over habitat 
for western yellow-billed cuckoos. Habitat is primarily cottonwood, 
Goodding's willow, and some mesquite (Cajero 2016, entire).
    Unit 22: AZ-20, Gila River 1; Graham County, Arizona.
    Critical habitat Unit AZ-20 is 10,540 ac (4,266 ha) in extent and 
is a 76-mi (123-km) long continuous segment of the Gila River in Graham 
County, Arizona. This segment extends along the Gila River from east of 
Safford downstream to the confluence with the San Carlos Reservoir. We 
have excluded approximately 10,184 ac (4,121 ha) of land from this unit 
(see Exclusions). Several mitigation conservation properties along the 
Gila River that support nesting western yellow-billed cuckoos were not 
considered for exclusion. Approximately 778 ac (315 ha) is in Federal 
ownership; 215 ac (87 ha) is in State ownership; and 9,547 ac (3,863 
ha) is in other ownership. This unit is considered to have been 
occupied at the time of listing. Western yellow-billed cuckoos nest in 
this unit during the breeding season (Corman and Magill 2000, p. 39; 
Dockens and Ashbeck 2014, pp. 6-7; SRP 2015; p. 28; Johnson 2016, 
entire; AGFD 2018, entire; SRP 2019a, pp. 33-62; Service 2020c, 
entire). This unit is part of the core area as identified in our 
conservation strategy for designating critical habitat for the western 
yellow-billed cuckoo. Part of this unit is within the BLM's Gila Box 
Riparian National Conservation Area, established by Congress to 
conserve, protect, and enhance the riparian values of the area, 
Mitigation conservation properties along the Gila River that support 
nesting western yellow-billed cuckoos were not considered for exclusion 
at the request of the landowners. The unit provides the habitat 
component provided in PBF 1 and the prey component in PBF 2. Hydrologic 
processes, in natural or altered systems, that provide for maintaining 
and regenerating breeding habitat as identified in PBF 3 occur within 
this unit but depend on river flows and flood timing. Altered hydrology 
has caused the introduction and spread of nonnative tamarisk resulting 
in reduced quality of riparian habitat. Although tamarisk is not as 
desirable as native habitat, it may contribute toward habitat 
suitability in areas where the native tree density can no longer be 
sustained. The site also provides a movement corridor and migratory 
stop-over habitat for western yellow-billed cuckoos.
    Suitable habitat varies from multi-storied cottonwood and 
Goodding's willow dominated habitat with large patches of coyote willow 
along the stream edges to mixed tamarisk/native habitat with fewer 
cottonwood and willows (SRP 2019a, p. 62). Western yellow-billed cuckoo 
presence and density varies, depending on habitat

[[Page 20860]]

quality. Patches of unsuitable tamarisk dominated habitat are 
interspersed within this unit.
    Unit 23: AZ-21 Salt River; Gila County, Arizona.
    Critical habitat unit AZ-21 is 581 ac (235 ha) in extent and is a 
5-mi (8-km)-long continuous segment of the Salt River ending at the 
2,151-ft (656-m) elevation line, which represents the lakebed at 
Theodore Roosevelt Lake in Gila County, Arizona. We have excluded 
approximately 2,009 ac (813 ha) of land from this unit (see 
Exclusions). Approximately 502 ac (203 ha) of this unit is Federal 
ownership, and 79 ac (32 ha) is in other ownership. This unit is 
considered to have been occupied at the time of listing. Western 
yellow-billed cuckoos occupy and nest in this unit during the breeding 
season (Corman and Magill 2000, p. 38, 50; Johnson et al. 2004, 2005, 
2006, 2007, entire; SRP 2005, p. 5; SRP 2017b, p. 28; AGFD 2018, 
entire; Cornell Lab of Ornithology 2020 (eBird data)). This unit is 
part of the core area as identified in our conservation strategy for 
designating critical habitat for the western yellow-billed cuckoo. The 
unit provides the habitat component provided in PBF 1 and the prey 
component in PBF 2. Hydrologic processes, in natural or altered 
systems, that provide for maintaining and regenerating breeding habitat 
as identified in PBF 3 occur within this unit but depend on river flows 
and flood timing. Habitat consists of primarily of tamarisk, mesquite, 
and willow. The site also provides a movement corridor between larger 
habitat patches. Altered hydrology has caused the introduction and 
spread of nonnative tamarisk resulting in reduced quality of riparian 
habitat. Although tamarisk is not as desirable as native habitat, it 
may contribute toward habitat suitability in areas where the native 
tree density can no longer be sustained. Tamarisk is a component of 
habitat in this unit and may provide understory or nesting habitat for 
the western yellow-billed cuckoo.
    Unit 24: AZ-22 Lower Cienega Creek, Pima County, Arizona.
    Critical habitat unit AZ-22 is 2,360 ac (955 ha) in extent and is 
an 11-mi (18-km)-long continuous segment of Cienega Creek about 15 mi 
(24 km) southeast of Tucson in Pima County, Arizona. Approximately 759 
ac (307 ha) are State lands and 1,601 ac (648 ha) is in other 
ownership. This unit is considered to have been occupied at the time of 
listing. Western yellow-billed cuckoos occupy and nest in Pima County's 
Cienega Creek Natural Preserve regularly during the breeding season 
(Corman and Magill 2000, p. 48; Powell 2013, entire; Murray and 
Gicklhorn 2018, pp. 11-13; AGFD 2018, entire; National Audubon Society 
2013a, entire; Cornell Lab of Ornithology 2020 (eBird data)). This unit 
is part of the core area as identified in our conservation strategy for 
designating critical habitat for the western yellow-billed cuckoo. The 
unit provides the habitat component provided in PBF 1 and the prey 
component in PBF 2. Hydrologic processes, in natural or altered 
systems, that provide for maintaining and regenerating breeding habitat 
as identified in PBF 3 occur within this unit but depend on river flows 
and flood timing. The site also provides a movement corridor between 
larger habitat patches. Habitat consists of cottonwood, Goodding's 
willow, ash, hackberry, and mesquite in reaches of perennial water. 
Tamarisk is widely scattered and relatively rare (Powell 2013, p. 12). 
Altered hydrology has caused the introduction and spread of nonnative 
tamarisk resulting in reduced quality of riparian habitat. Although 
tamarisk is not as desirable as native habitat, it may contribute 
toward habitat suitability in areas where the native tree density can 
no longer be sustained.
    Unit 25: AZ-23 Blue River, Greenlee County, Arizona.
    Critical habitat unit AZ-23 is 1,025 ac (415 ha) in extent and is 
an 8-mi (13-km)-long continuous segment of the Blue River in Greenlee 
County, Arizona. The entire unit is in Federal ownership located on the 
Apache Sitgreaves National Forest managed by the USFS. This unit is 
considered to have been occupied at the time of listing. Western 
yellow-billed cuckoos occupy this site (AGFD 2018, entire; Corman and 
Magill 2000, pp. 14, 38-39, 44; Reclamation 2020b, p. 6.1.2). This unit 
is part of the Blue and San Francisco Rivers IBA (National Audubon 
Society 2020c, entire). This unit is part of the core area as 
identified in our conservation strategy for designating critical 
habitat for the western yellow-billed cuckoo. The unit provides the 
habitat component provided in PBF 1 and the prey component in PBF 2. 
Hydrologic processes, in natural or altered systems, that provide for 
maintaining and regenerating breeding habitat as identified in PBF 3 
occur within this unit but depend on river flows and flood timing. 
Riparian habitat is dominated by cottonwood, willow, alder, and 
sycamore. Walnut, mesquite, oak and juniper may also be present.
    Unit 26: AZ-24 Pinto Creek South, Gila and Pinal Counties, Arizona.
    Critical habitat unit AZ-24 is 373 ac (151 ha) in extent and is a 
4-mi (6-km)-long continuous segment of Pinto Creek in Gila and Pinal 
Counties, Arizona. Approximately 368 ac (149 ha) is in Federal 
ownership, and 5 ac (2 ha) is in other ownership. This unit is 
considered to have been occupied at the time of listing (Corman and 
Magill 2000, pp. 38, 42, AGFD 2018, entire; WestLand Resources, Inc. 
2019, entire; Cornell Lab of Ornithology 2020 (eBird data); Service 
2020c, entire). This unit is part of the core area as identified in our 
conservation strategy for designating critical habitat for the western 
yellow-billed cuckoo. The unit provides the habitat component provided 
in PBF 1 and the prey component in PBF 2. Hydrologic processes, in 
natural or altered systems, that provide for maintaining and 
regenerating breeding habitat as identified in PBF 3 occur within this 
unit but depend on river flows and flood timing. Altered hydrology has 
caused the introduction and spread of nonnative tamarisk resulting in 
reduced quality of riparian habitat. Although tamarisk is not as 
desirable as native habitat, it may contribute toward habitat 
suitability in areas where the native tree density can no longer be 
sustained. Habitat is mostly native broadleaf plants, with an overstory 
of cottonwood, Goodding's willow, and sycamore and an understory of ash 
and cottonwood (WestLand Resources, Inc. 2019, entire).
    Unit 27: AZ-25 Aravaipa Creek; Pinal and Graham Counties, Arizona.
    Critical habitat Unit AZ-25 is 2,937 ac (1,189 ha) in extent and is 
a 28-mi (46-km)-long continuous segment of Aravaipa Creek extending 
from the confluence of Aravaipa Creek and the San Pedro River in Pinal 
and Graham Counties, Arizona. In addition, this unit includes 
approximately 3-mi (4-km) of the Turkey Creek tributary on the eastern 
end of the Unit. We have excluded approximately 392 ac (159 ha) of San 
Carlos Apache tribal land from this unit (see Exclusions). 
Approximately 622 ac (252 ha) is in Federal ownership; 116 ac (47 ha) 
is in State ownership; and 2,199 ac (890 ha) is in other ownership. 
This unit includes BLM's Aravaipa Canyon Wilderness Area and TNC's 
Aravaipa Canyon Preserve. This unit is considered to have been occupied 
at the time of listing. Western yellow-billed cuckoos occupy and nest 
in this unit during the breeding season within this unit (Corman and 
Magill 2000, pp. 41-43; AGFD 2018, entire; Cornell Lab of Ornithology 
2020 (eBird data)). This unit is part of the core area as identified in 
our conservation strategy for designating critical habitat for the 
western yellow-billed cuckoo. Habitat is

[[Page 20861]]

mixed broadleaf riparian forest composed of cottonwood, willow, walnut, 
alder, and sycamore trees (TNC 2020, entire). The unit provides the 
habitat component provided in PBF 1 and the prey component in PBF 2. 
Hydrologic processes, in natural or altered systems, that provide for 
maintaining and regenerating breeding habitat as identified in PBF 3 
occur within this unit but depend on river flows and flood timing. The 
site also provides a movement corridor and migratory stop-over habitat 
for western yellow-billed cuckoos.
    Patches and stringers of cottonwood-willow riparian forest and 
adjacent mesquite bosque exist throughout Aravaipa Canyon. This 
drainage experiences scouring flood flows that can result in shifting 
suitable habitat within the floodplain. Including the entire Aravaipa 
Canyon ensures that if suitable habitat shifts, it will remain within 
critical habitat. Connecting this unit to the San Pedro River units 
(AZ-14 and AZ-15) by including the confluence with the San Pedro River 
strengthens the conservation value of both units by linking breeding, 
migration, and dispersal corridors. Altered hydrology caused the 
introduction and spread of nonnative tamarisk resulting in reduced 
quality of riparian habitat. Although tamarisk is not as desirable as 
native habitat, it contributes toward habitat suitability in areas 
where the native tree density can no longer be sustained.
    Unit 28: AZ-26, Gila River 2; Graham and Greenlee Counties, 
Arizona.
    Critical habitat Unit AZ-26 is 5,836 ac (2,362 ha) in extent and is 
a continuous segment of the Gila River and continuous segment of Eagle 
Creek in Graham and Greenlee Counties, Arizona. Eagle Creek, a 
tributary to the Gila River, straddles the eastern boundary of San 
Carlos Apache Reservation and meanders in and out of private, State, 
tribal, and Federal lands. Also included in this unit is a small 
portion of the San Francisco River at the confluence with the Gila 
River in Graham and Greenlee Counties, Arizona. We have excluded 
approximately 2,753 ac (1,114 ha) of land from this unit (see 
Exclusions). Approximately 1,895 ac (767 ha) is in Federal ownership; 
204 ac (83 ha) is in State ownership; and 3,736 ac (1,512 ha) is in 
other ownership. Part of this unit is within the BLM's Gila Box 
Riparian National Conservation Area, established by Congress to 
conserve, protect, and enhance the riparian values of the area. This 
unit is considered to have been occupied at the time of listing. 
Western yellow-billed cuckoos occupy and nest in this unit in several 
locations on the Gila River and Eagle Creek during the breeding season 
(WestLand Resources, Inc. 2015e, entire; Andreson 2016a, entire; 
Johnson 2016, entire; AGFD 2018, entire; Cornell Lab of Ornithology 
2020 (eBird data); Service 2020c, entire). This unit is part of the 
core area as identified in our conservation strategy for designating 
critical habitat for the western yellow-billed cuckoo. The unit 
provides the habitat component provided in PBF 1 and the prey component 
in PBF 2. Hydrologic processes, in natural or altered systems, that 
provide for maintaining and regenerating breeding habitat as identified 
in PBF 3 occur within this unit but depend on river flows and flood 
timing. The site also provides a movement corridor and migratory stop-
over habitat for western yellow-billed cuckoos.
    Riparian habitat in overstory and understory along one survey reach 
in Eagle Creek is primarily cottonwood and sycamore (Westland 
Resources, Inc. 2019, entire). Lower Eagle Creek includes cottonwood, 
willow, ash, and mesquite bosque habitat where western yellow-billed 
cuckoos have been documented during the breeding season. Although 
narrow and patchy in some reaches of the eastern part of this unit on 
the Gila River, habitat is primarily cottonwood and willow, with less 
tamarisk than farther downstream (Johnson 2016, entire). Altered 
hydrology has caused the introduction and spread of nonnative tamarisk 
resulting in reduced quality of riparian habitat. Although tamarisk is 
not as desirable as native habitat, it may contribute toward habitat 
suitability in areas where the native tree density can no longer be 
sustained.
    Unit 29: AZ-27 Pinto Creek North; Gila County, Arizona.
    Critical habitat unit AZ-27 is 427 ac (173 ha) in extent and is a 
6-mi (10-km)-long continuous segment of Pinto Creek, located 
approximately 7 mi (11 km) upstream of Roosevelt Lake in Gila County, 
Arizona. Approximately 415 ac (168 ha) is in Federal ownership, and 12 
ac (5 ha) is in other ownership. This unit is considered to have been 
occupied at the time of listing and is used by the western yellow-
billed cuckoo during the breeding season AGFD 2018, entire; Cornell Lab 
of Ornithology 2020 (eBird data); Service 2020, entire). This unit is 
part of the core area as identified in our conservation strategy for 
designating critical habitat for the western yellow-billed cuckoo. The 
unit provides the habitat component provided in PBF 1 and the prey 
component in PBF 2. Hydrologic processes, in natural or altered 
systems, that provide for maintaining and regenerating breeding habitat 
as identified in PBF 3 occur within this unit but depend on river flows 
and flood timing. The site also provides migration stop-over habitat. 
Altered hydrology has caused the introduction and spread of nonnative 
tamarisk resulting in reduced quality of riparian habitat. Although 
tamarisk is not as desirable as native habitat, it may contribute 
toward habitat suitability in areas where the native tree density can 
no longer be sustained. Habitat has declined in recent years due to 
drought and water withdrawal. Habitat consists of Goodding's willow, 
cottonwood, ash, alder, sycamore, hackberry and some tamarisk. Large 
mesquite trees are adjacent to the riparian habitat (Service 2020c, 
entire).
    Unit 30: AZ-28 Mineral Creek; Pinal and Gila Counties, Arizona.
    Critical habitat Unit AZ-28 is 380 ac (154 ha) in extent and is a 
7-mi (11-km)-long continuous segment of Mineral Creek in Pinal and Gila 
Counties, Arizona. Approximately 1 ac (<1 ha) is in Federal ownership; 
198 ac (80 ha) is in State ownership; and 180 ac (73 ha) is in other 
ownership. This unit is considered to have been occupied at the time of 
listing and is used by the western yellow-billed cuckoo during the 
breeding season (WestLand Resources, Inc. 2019, entire). The southern 
end of Mineral Creek, which is not included in the proposal, empties 
into a reservoir owned by American Smelting And Refining Company 
(ASARCO). This unit is part of the core area as identified in our 
conservation strategy for designating critical habitat for the western 
yellow-billed cuckoo. The unit provides the habitat component provided 
in PBF 1 and the prey component in PBF 2. Hydrologic processes, in 
natural or altered systems, that provide for maintaining and 
regenerating breeding habitat as identified in PBF 3 occur within this 
unit but depend on river flows and flood timing. The site also provides 
a movement corridor and migratory stop-over habitat for western yellow-
billed cuckoos. Mineral Creek provides suitable habitat for western 
yellow-billed cuckoos along most of the surveyed reach, consisting 
mostly of ash, with willow, cottonwood, and sycamore (Westland 
Resources, Inc. 2019, entire).
    Unit 31: AZ-29 Big Sandy River; Mohave County, Arizona.
    Critical habitat within Unit AZ-29 totals approximately 4,236 ac 
(1,714 ha) in extent. We have excluded approximately 500 ac (202 ha) of 
land from this unit (see Exclusions (Alamo

[[Page 20862]]

Lake Wildlife Area)). We also removed additional areas from this unit 
due to either not containing the PBFs or not meeting our criteria for 
designation. Approximately 1,291 ac (522 ha) is in Federal ownership 
and 2,945 ac (1,192 ha) is in other ownership. Based on survey data, 
descriptions of habitat, and lack of information, we have removed parts 
of this unit from critical habitat designation. Areas removed were more 
arid and or in narrow canyons than the remaining portion of the unit. 
This unit is considered to have been occupied at the time of listing 
and western yellow-billed cuckoos occupy this site during the breeding 
season (Magill et al. 2005, p. 8; Dockens et al. 2006, p. 7; O'Donnell 
et al. 2016, pp. 1, 6, 21). This unit is part of the core area as 
identified in our conservation strategy for designating critical 
habitat for the western yellow-billed cuckoo. The unit provides the 
habitat component provided in PBF 1 and the prey component in PBF 2. 
Hydrologic processes, in natural or altered systems, that provide for 
maintaining and regenerating breeding habitat as identified in PBF 3 
occur within this unit but depend on river flows and flood timing. 
Following heavy streamflow, the amount of regenerating habitat that 
develops along the Big Sandy River at the inflow to Alamo Lake is 
influenced by the length of time and the amount of water that is backed 
up behind the dam. The site also provides a movement corridor and 
migratory stop-over habitat for western yellow-billed cuckoos.
    The Big Sandy River has flows that are spatially and temporally 
intermittent. However, in the vicinity of US 93, the river is perennial 
and supports a dense riparian woodland of tamarisk, cottonwood, and 
Goodding's willow, bordered and interspersed with mesquite (Magill et 
al. 2005, pp. 1, 5). Within the floodplain, seep willow, arrowweed 
(Pluchea sericea), and screw-bean mesquite (Prosopis pubescens) are 
also common. Adjacent upland habitat in the area is Arizona Upland 
Subdivision of Sonoran Desertscrub dominated by foothills paloverde 
(Circidium floridium), mixed cacti, and creosote bush (Larrea 
tridentata) (Magill et al. 2005, p. 5). Western yellow-billed cuckoos 
were found in cottonwood, willow, or the adjacent mesquite (Magill et 
al. 2005, p. 8; Dockens et al. 2006, p. 7). Altered hydrology has 
caused the introduction and spread of nonnative tamarisk resulting in 
reduced quality of riparian habitat. Although tamarisk is not as 
desirable as native habitat, it may contribute toward habitat 
suitability in areas where the native tree density can no longer be 
sustained.
    Unit 32: NM-1 San Francisco River; Catron County, New Mexico.
    Critical habitat unit NM-1 is 2,039 ac (825 ha) in extent and is a 
10-mi (16-km)-long continuous segment of the San Francisco River near 
the Town of Glenwood in Catron County, New Mexico. This segment 
includes 1.2 mi (2 km) portion of Whitewater Creek from the confluence 
of the San Francisco River near the Town of Glenwood. Approximately 738 
ac (299 ha) is in Federal ownership; 10 ac (4 ha) is in State 
ownership; and 1,291 ac (522 ha) is in other ownership. This unit is 
considered to have been occupied at the time of listing and is used by 
the western yellow-billed cuckoo during the breeding season. The unit 
provides the habitat component provided in PBF 1 and the prey component 
in PBF 2. Hydrologic processes, in natural or altered systems, that 
provide for maintaining and regenerating breeding habitat as identified 
in PBF 3 occur within this unit but depend on river flows and flood 
timing. The site also provides migratory stop-over habitat for western 
yellow-billed cuckoos moving farther north. Tamarisk is a component of 
habitat in this unit and may provide understory or nesting habitat for 
the western yellow-billed cuckoo. This unit is part of the core area as 
identified in our conservation strategy for designating critical 
habitat for the western yellow-billed cuckoo. Altered hydrology has 
caused the introduction and spread of nonnative tamarisk resulting in 
reduced quality of riparian habitat. Although tamarisk is not as 
desirable as native habitat, it may contribute toward habitat 
suitability in areas where the native tree density can no longer be 
sustained.
    Unit 33: NM-2 Gila River; Grant County, New Mexico.
    Critical habitat unit NM-2 is 3,036 ac (1,228 ha) in extent and is 
a 24-mi (37-km)-long continuous segment of the Gila River from 10 mi 
(16 km) downstream from the town of Cliff to 10 mi (16 km) upstream of 
the town of Gila in Grant County, New Mexico. We have excluded 
approximately 1,142 ac (381 ha) of land from this unit (see 
Exclusions). Approximately 974 ac (394 ha) is in Federal ownership; 194 
ac (78 ha) is in State ownership; and 1,867 ac (756 ha) is in other 
ownership. This unit is considered to have been occupied at the time of 
listing and is consistently used by a large number of western yellow-
billed cuckoos during the breeding season and is an important breeding 
location for the species. This unit is part of the core area as 
identified in our conservation strategy for designating critical 
habitat for the western yellow-billed cuckoo. The unit provides the 
habitat component provided in PBF 1 and the prey component in PBF 2. 
Hydrologic processes, in natural or altered systems, that provide for 
maintaining and regenerating breeding habitat as identified in PBF 3 
occur within this unit but depend on river flows and flood timing. The 
site also provides migratory stop-over habitat for western yellow-
billed cuckoos moving farther north. Altered hydrology has caused the 
introduction and spread of nonnative tamarisk resulting in reduced 
quality of riparian habitat. Although tamarisk is not as desirable as 
native habitat, it may contribute toward habitat suitability in areas 
where the native tree density can no longer be sustained. Tamarisk is a 
component of habitat in this unit and may provide understory or nesting 
habitat for the western yellow-billed cuckoo.
    Unit 34: NM-3A and NM-3B Mimbres River; Grant County, New Mexico.
    Critical habitat Unit NM-3 is 544 ac (220 ha) in extent (NM-3A 260 
ac (105 ha); NM-3B 284 ac (115 ha)). The unit is made up of two 
segments totaling approximately 7.4 mi (11.9 km) of the Mimbres River 
north of the town of Mimbres in Grant County, New Mexico. The entire 
proposed Unit NM-3 is privately owned. This unit is considered to have 
been occupied at the time of listing and id used by western yellow-
billed cuckoo during the breeding season. This unit is part of the core 
area as identified in our conservation strategy for designating 
critical habitat for the western yellow-billed cuckoo. The two areas 
provide the habitat components in PBF 1 and the prey component in PBF 
2. Hydrologic processes, in natural or altered systems, that provide 
for maintaining and regenerating breeding habitat as identified in PBF 
3 occur within this unit but depend on river flows and flood timing. 
Habitat is composed of mainly cottonwood, Goodding's willow and 
boxelder.
    Unit 35: NM-4 Upper Rio Grande 1; Rio Arriba County, New Mexico.
    Critical habitat unit NM-4 is 518 ac (210 ha) in extent and is a 
10-mi (16-km)-long continuous segment of the upper Rio Grande from 
Ohkay Owingeh to near Alcalde in Rio Arriba County, New Mexico. We have 
excluded approximately 1,312 ac (513 ha) of land from this unit (see 
Exclusions). The entire area is in private ownership. This unit is 
considered to have been occupied at the time of listing and is used by 
the western yellow-billed

[[Page 20863]]

cuckoo during the breeding season. This unit is part of the core area 
as identified in our conservation strategy for designating critical 
habitat for the western yellow-billed cuckoo. The unit provides the 
habitat component provided in PBF 1 and the prey component in PBF 2. 
Hydrologic processes, in natural or altered systems, that provide for 
maintaining and regenerating breeding habitat as identified in PBF 3 
occur within this unit but depend on river flows and flood timing. The 
site also provides a movement corridor for western yellow-billed 
cuckoos moving farther north. Altered hydrology has caused the 
introduction and spread of nonnative tamarisk resulting in reduced 
quality of riparian habitat. Although tamarisk is not as desirable as 
native habitat, it may contribute toward habitat suitability in areas 
where the native tree density can no longer be sustained. Tamarisk is a 
component of habitat in this unit and may provide understory or nesting 
habitat for the western yellow-billed cuckoo.
    Unit 36: NM-5 Upper Rio Grande 2; Santa Fe and Rio Arriba Counties, 
New Mexico.
    Critical habitat unit NM-5 was proposed as 1,173 ac (475 ha) in 
extent and comprised of a 6-mi (10-km)-long continuous segment of the 
Upper Rio Grande starting from the Highway 502 Bridge at the south end 
of the San Ildefonso Pueblo upstream to a point on the river in Rio 
Arriba County, New Mexico. We have excluded the entire unit from the 
final designation (see Exclusions). A description and map of this unit 
is maintained in supporting information for this designation (Service 
2020b, entire).
    Unit 37: NM-6A and NM-6B Middle Rio Grande; Sierra, Socorro, 
Valencia, Bernalillo, and Sandoval Counties, New Mexico.
    Critical habitat Unit NM-6 is made up of two areas: NM-6A and NM-
6B. NM-6A has been entirely excluded from the final designation (see 
Exclusions). A description and map of Unit NM-6A is maintained in 
supporting information for this designation (Service 2020b, entire). 
NM-6B contains 46,595 ac (18,856 ha) along the Rio Grande upstream of 
Elephant Butte Reservoir in Socorro and Valencia Counties, New Mexico. 
Within Unit 37 NM-6B approximately 8,651 ac (3,501 ha) is in Federal 
ownership; 13,064 ac (5,287 ha) is in State ownership; and 24,879 ac 
(10,068 ha) is in other ownership. This unit is considered to have been 
occupied at the time of listing and is consistently occupied by the 
largest number of western yellow-billed cuckoos during the breeding 
season north of Mexico. This unit is part of the core area as 
identified in our conservation strategy for designating critical 
habitat for the western yellow-billed cuckoo. The unit provides the 
habitat component provided in PBF 1 and the prey component in PBF 2. 
Hydrologic processes, in natural or altered systems, that provide for 
maintaining and regenerating breeding habitat as identified in PBF 3 
occur within this unit but depend on river flows and flood timing. The 
site also provides a movement corridor for western yellow-billed 
cuckoos. Altered hydrology has resulted in the establishment of 
tamarisk. Tamarisk is being used by western yellow-billed cuckoos 
during the breeding season in this unit and may provide important 
understory habitat (Sechrist et al. 2009, p. 55).
    Unit 38: NM-7, Upper Gila River; Hidalgo and Grant Counties, New 
Mexico.
    Critical habitat Unit NM-7 is 4,727 ac (1,913 ha) in size and 
extends in a 30-mi (48-km)-long continuous segment of the Gila River 
from the Arizona-New Mexico border 5 mi (8 km) downstream from Virden 
in Hidalgo County upstream to 8 mi (13 km) upstream from Red Rock in 
Grant County, New Mexico. Approximately 1,086 ac (439 ha) is in Federal 
ownership; 188 ac (76 ha) is in State ownership; and 3,453 ac (1,397 
ha) is in other ownership. The unit is considered to have been occupied 
at the time of listing. This site is consistently occupied by numerous 
pairs of western yellow-billed cuckoos during the breeding season. This 
unit is part of the core area as identified in our conservation 
strategy for designating critical habitat for the western yellow-billed 
cuckoo. The unit provides the habitat component provided in PBF 1 and 
the prey component in PBF 2. Hydrologic processes, in natural or 
altered systems, that provide for maintaining and regenerating breeding 
habitat as identified in PBF 3 occur within this unit but depend on 
river flows and flood timing. The unit also provides connecting habitat 
between the Upper and Lower Gila River and a movement corridor and 
migratory stop-over habitat for western yellow-billed cuckoos. Tamarisk 
is a component of habitat in this unit and may provide understory or 
nesting habitat for the western yellow-billed cuckoo.
    Unit 39: NM-8A Caballo Delta North and NM-8B Caballo Delta South; 
Sierra County, New Mexico.
    Critical habitat unit NM-8 is made up of two areas (NM-8A 190 ac 
(77 ha) and NM-8B 155 ac (63 ha)) within the delta area of Caballo 
Reservoir east of the town of Caballo, within Sierra County, New 
Mexico. We have excluded the entire Unit 39 (NM-8A and NM-8B) from the 
final designation (see Exclusions). A description and map of this unit 
is maintained in supporting information for this designation (Service 
2020b, entire).
    Unit 40: NM-9 Animas; Sierra County, New Mexico.
    Critical habitat unit NM-9 is 608 ac (246 ha) in extent and is 
located on a 6-mi (10-km)-long continuous segment of Las Animas Creek 
west of the town of Caballo, within Sierra County, New Mexico. We have 
excluded the entire unit from the final designation (see Exclusions). A 
description and map of this unit is maintained in supporting 
information for this designation (Service 2020b, entire).
    Unit 41: NM-10 Selden Canyon and Radium Springs; Do[ntilde]a Ana 
County, New Mexico.
    Critical habitat unit NM-10 is 237 ac (96 ha) in extent and is a 
12.5-mi (20-km)-long continuous segment of river in Do[ntilde]a Ana 
County, New Mexico. It is located on a continuous segment of habitat 
northwest of the town of Radium Springs, within Do[ntilde]a Ana County, 
New Mexico. We have excluded the entire unit from the final designation 
(see Exclusions). A description and map of this unit is maintained in 
supporting information for this designation (Service 2020b, entire).
    Unit 42: AZ-30 Arivaca Wash and San Luis Wash; Pima County, 
Arizona.
    Critical habitat unit AZ-30 is 5,765 ac (2,333 ha) in extent and is 
made up of two washes that join to form a 17-mi (27-km)-long continuous 
segment that comprises 9 mi (15 km) of Arivaca Wash and 8 mi (13 km) of 
San Luis Wash. The unit is located about 10 mi (16 km) north of the 
border of Mexico near the Town of Arivaca in Pima County, Arizona. 
Approximately 4,662 ac (1,887 ha) is in Federal ownership; 89 ac (36 
ha) is in State ownership; and 1,014 ac (410 ha) is in other ownership. 
Most of this unit is located on the Buenos Aries National Wildlife 
Refuge. The unit is considered to have been occupied at the time of 
listing. This unit is consistently occupied by numerous nesting western 
yellow-billed cuckoos during the breeding season (Corman and Magill 
2000, pp. 39, 42-43, 47; Griffin 2015, entire; AGFD 2018, entire; 
Cornell Lab of Ornithology (2020, entire). This unit is part of the 
area within the Southwest portion of the DPS that provides breeding 
habitat for the western yellow-billed cuckoo, which is outside mainstem 
rivers and their tributaries as identified in our conservation 
strategy.

[[Page 20864]]

The unit provides the habitat component provided in PBF 1 and the prey 
component in PBF 2. Hydrologic processes, in natural or altered 
systems, that provide for maintaining and regenerating breeding habitat 
as identified in PBF 3 occurs within this unit (monsoonal events). The 
western yellow-billed cuckoo breeding population on the refuge occurs 
not only within this unit, but in the Brown Canyon unit and in other 
drainages not included as critical habitat. Ephemeral, intermittent, 
and perennial riparian drainages intersect grassland, mesquite 
woodlands, Madrean evergreen woodland, and scrub habitat across the 
refuge (Griffin 2015, pp. 1, 28; Corson 2018, entire). The site also 
provides a movement corridor between larger habitat patches. Within 
this unit, habitat consists of cienega marsh, cattail-bulrush pond, 
cottonwood and willow riparian forest mixed with ash and hackberry, 
upland mesquite woodland, bottomland mesquite-herbaceous woodland 
mesquite-hackberry woodland, native grassland, and disturbed herbaceous 
areas (Griffin 2015, pp. 10-13).Walnut, Mexican elderberry, desert 
willow, and mesquite occur as small trees in the understory in some 
areas. Small seeps and springs are also present in this complex.
    Unit 43: AZ-31 Florida Wash; Pima and Santa Cruz Counties, Arizona.
    Critical habitat Unit AZ-31 is 747 ac (302 ha) in extent and is a 
6-mi (10-km)-long continuous segment of Florida Wash and tributaries in 
Pima and Santa Cruz Counties, Arizona. Approximately 449 ac (182 ha) is 
in Federal ownership; 255 ac (103 ha) is in State ownership; and 43 ac 
(17 ha) is in other ownership. This unit is considered to have been 
occupied at the time of listing and occupy and nest in this unit during 
the breeding season (MacFarland and Horst 2015, pp. 101-102, 185-186; 
MacFarland and Horst 2017, pp. 57-58; AGFD 2018, entire; Cornell Lab of 
Ornithology 2020 (eBird data)); Drost et al. 2020, pp. 13, 33, 35). 
This unit is part of the area within the Southwest portion of the DPS 
that provides breeding habitat for the western yellow-billed cuckoo, 
which is outside mainstem rivers and their tributaries as identified in 
our conservation strategy. The unit provides the habitat component 
provided in PBF 1 and the prey component in PBF 2. Hydrologic 
processes, in natural or altered systems, that provide for maintaining 
and regenerating breeding habitat as identified in PBF 3 occurs within 
this unit (monsoonal events). The site also provides a movement 
corridor and migratory stop-over habitat for western yellow-billed 
cuckoos.
    This unit is within the Santa Rita Mountains IBA (National Audubon 
Society 2016f, entire), one of the sky islands of southeastern Arizona 
with transitional elevational gradients of forest, oak woodland, 
grassland, and riparian habitat. Vegetation in occupied habitat is 
primarily oak, hackberry, and mesquite, with some acacia, sycamore, 
ocotillo (Fouquieria splendens), and juniper along with various other 
midstory and understory plant species (MacFarland and Horst 2015, pp. 
124, 129, 134; Service 2020c, entire).
    Unit 44: AZ-32 California Gulch; Santa Cruz County, Arizona.
    Critical habitat Unit AZ-32 is 558 ac (226 ha) in extent and is a 
7-mi (11-km)-long continuous segment along California Gulch in Santa 
Cruz County, Arizona. Approximately 376 ac (152 ha) is in Federal 
ownership, and 181 ac (73 ha) is in other ownership. We have excluded 
the 60-ft (18-m) Roosevelt Reservation from this unit (see Exclusions). 
The unit is considered to have been occupied at the time of listing. 
Western yellow-billed cuckoos occupy and nest in this drainage 
regularly during the breeding season (Sferra et al. 2019, pp. 5, 6, 9; 
Cornell Lab of Ornithology 2020 (eBird data)). This unit is part of the 
area within the Southwest portion of the DPS that provides breeding 
habitat for the western yellow-billed cuckoo, which is outside mainstem 
rivers and their tributaries as identified in our conservation 
strategy. The unit provides the habitat component provided in PBF 1 and 
the prey component in PBF 2. Hydrologic processes, in natural or 
altered systems, that provide for maintaining and regenerating breeding 
habitat as identified in PBF 3 occurs within this unit (monsoonal 
events). The site also provides a movement corridor and migratory stop-
over habitat for western yellow-billed cuckoos. This unit is within the 
Atascosa Mountains IBA in one of the sky islands (Arizona IBA 2020a; 
entire). The habitat is Sonoran desert scrub, Madrean evergreen 
woodland, semi-desert grassland, and low-elevation riparian.
    Unit 45: AZ-33 Sycamore Canyon; Santa Cruz County, Arizona.
    Critical habitat Unit AZ-33 is 601 ac (243 ha) in extent and is an 
8-mi (11-km)-long continuous segment along Sycamore Canyon in Santa 
Cruz County, Arizona. The entire unit is in Federal ownership. We have 
excluded the 60-ft (18-m) Roosevelt Reservation from this unit (see 
Exclusions). The unit is considered to have been occupied at the time 
of listing and western yellow-billed cuckoos occupy and nest in this 
unit during the breeding season (Corman and Magill 2000, p. 51; 
MacFarland and Horst 2015, pp. 5, 25-26; AGFD 2018, entire; Sferra et 
al. 2019, pp. 5, 9; Cornell Lab of Ornithology 2020 (eBird data)). This 
unit is part of the area within the Southwest portion of the DPS that 
provides breeding habitat for the western yellow-billed cuckoo, which 
is outside mainstem rivers and their tributaries as identified in our 
conservation strategy. The site also provides a movement corridor and 
migratory stop-over habitat for western yellow-billed cuckoos.
    The unit provides the habitat component provided in PBF 1 and the 
prey component in PBF 2. Hydrologic processes, in natural or altered 
systems, that provide for maintaining and regenerating breeding habitat 
as identified in PBF 3 occurs within this unit (monsoonal events). 
Occupied habitat includes riparian and Madrean evergreen woodland 
vegetation including oak, mesquite, ash, and juniper (MacFarland and 
Horst 2015, p. 124). This unit is contained within the Atascosa 
Mountains IBA, with western yellow-billed cuckoos identified as one of 
the breeding birds (Arizona IBA 2020a, entire).
    Unit 46: AZ-34 Madera Canyon; Pima and Santa Cruz Counties, 
Arizona.
    Critical habitat Unit AZ-34 is 1,732 ac (701 ha) in extent and is a 
7-mi (11-km)-long continuous segment of Madera Canyon in Pima and Santa 
Cruz Counties, Arizona. Approximately 1,419 ac (574 ha) is in Federal 
ownership, and 313 ac (127 ha) is in other ownership. The unit is 
considered to have been occupied at the time of listing. Western 
yellow-billed cuckoos occupy and nest in this unit during the breeding 
season (MacFarland and Horst 2015, pp. 99-100; AGFD 2018, entire; 
Cornell Lab of Ornithology 2020 (eBird data); Drost et al. 2020, pp. 
33, 36). This unit is part of the area within the Southwest portion of 
the DPS that provides breeding habitat for the western yellow-billed 
cuckoo, which is outside mainstem rivers and their tributaries as 
identified in our conservation strategy. The unit provides the habitat 
component provided in PBF 1 and the prey component in PBF 2. Hydrologic 
processes, in natural or altered systems, that provide for maintaining 
and regenerating breeding habitat as identified in PBF 3 occurs within 
this unit (monsoonal events). The site also provides a movement 
corridor and migratory stop-over habitat for western yellow-billed 
cuckoos. The drainage includes riparian, desert scrub, and Madrean 
evergreen woodland

[[Page 20865]]

vegetation. This unit is within the Santa Rita Mountains IBA (National 
Audubon Society 2016f, entire), one of the sky islands in southeastern 
Arizona. Overstory vegetation consists of mesquite, oak, juniper, 
cottonwood, hackberry, and sycamore with some walnut and ash 
(MacFarland and Horst 2015, pp. 124-125; Service 2020c, entire).
    Unit 47: AZ-35 Montosa Canyon; Santa Cruz County, Arizona.
    Critical habitat Unit AZ-35 is 499 ac (202 ha) in extent and is a 
4-mi (6-km)-long continuous segment of Montosa Canyon in Santa Cruz 
County, Arizona. Approximately 496 ac (201 ha) is in Federal ownership, 
and 3 ac (1 ha) is in other ownership. The unit is considered to have 
been occupied at the time of listing and western yellow-billed cuckoos 
occupy and nest in this unit during the breeding season (MacFarland and 
Horst 2015, pp. 103-104; Cornell Lab of Ornithology 2020 (eBird data); 
Service 2020c, entire). This unit is part of the area within the 
Southwest portion of the DPS that provides breeding habitat for the 
western yellow-billed cuckoo, which is outside mainstem rivers and 
their tributaries as identified in our conservation strategy. The unit 
provides the habitat component provided in PBF 1 and the prey component 
in PBF 2. Hydrologic processes, in natural or altered systems, that 
provide for maintaining and regenerating breeding habitat as identified 
in PBF 3 occurs within this unit (monsoonal events). The site also 
provides a movement corridor and migratory stop-over habitat for 
western yellow-billed cuckoos. This drainage includes riparian, desert 
scrub, and Madrean evergreen woodland vegetation. This canyon contains 
dense vegetation along the creek that flows through the bottom of the 
canyon, and the sloping vegetated canyon walls provide additional 
foraging opportunities (MacFarland and Horst 2015, p. 103). This unit 
is within the Santa Rita Mountains IBA (National Audubon Society 2016f, 
entire), one of the sky islands in southeastern Arizona. Occupied 
overstory habitat consists of oak, mesquite, hackberry, sycamore 
(MacFarland and Horst 2015, p. 124).
    Unit 48: AZ-36 Patagonia Mountains, Santa Cruz County, Arizona.
    Critical habitat Unit AZ-36 is 1,912 ac (774 ha) in extent and is 
an 11-mi (17-km)-long segment made up of several drainages in the 
Patagonia Mountains in Santa Cruz County, Arizona. Approximately 1,059 
ac (429 ha) is in Federal ownership; 8 ac (3 ha) is in State ownership; 
and 845 ac (342 ha) is in other ownership. Western yellow-billed 
cuckoos occupy and nest in the drainages within this unit along 2.2 mi 
(3.5 km) of Harshaw Creek, along 2.1 mi (3.3 km) of Corral Canyon, and 
along 1.4 mi (2.2 km) of Hermosa Canyon (AGFD 2018, entire; WestLand 
Resources, Inc. 2019, entire; Cornell Lab of Ornithology 2020 (eBird 
data); Drost et al. 2020, pp. 31, 35). This unit was considered 
occupied at the time of listing and western yellow-billed cuckoos 
occupy Harshaw Creek and an unnamed tributary, Hermosa Creek, Goldbaum 
Creek, Corral Canyon and two unnamed tributaries, and Willow Springs 
Canyon (WestLand Resources, Inc. 2019, entire). This unit is part of 
the area within the Southwest portion of the DPS that provides breeding 
habitat for the western yellow-billed cuckoo, which is outside mainstem 
rivers and their tributaries as identified in our conservation 
strategy. The unit provides the habitat component provided in PBF 1 and 
the prey component in PBF 2. Hydrologic processes, in natural or 
altered systems, that provide for maintaining and regenerating breeding 
habitat as identified in PBF 3 occurs within this unit (monsoonal 
events). The site also provides a movement corridor migratory stop-over 
habitat for western yellow-billed cuckoos.
    The Patagonia Mountains IBA is within one of southern Arizona's sky 
islands and is composed of Madrean evergreen woodland habitat dominated 
by oak-juniper, oak-pine, and pine oak communities surrounded by 
grasslands and desert (National Audubon Society 2016g, entire). The 
many canyons and drainages that cut through these mountains support 
riparian and xeroriparian vegetation. The extent of the oak-juniper 
community type habitat, with sycamores in drainages, is continuous 
throughout this range. Occupied habitat includes varying amounts of 
sycamore, cottonwood, mesquite, oak, juniper, pine, walnut, desert 
willow, walnut, mimosa, and skunkbush (Rhus spp.) (WestLand Resources, 
Inc. 2019, entire).
    Unit 49: AZ-37 Canelo Hills, Santa Cruz County
    Critical habitat Unit AZ-37 is 2,822 ac (1,142 ha) in extent and is 
an 11.5-mi (18.5-km)-long drainage within Santa Cruz County, Arizona. 
Approximately 1,381 ac (559 ha) is in Federal ownership; 1 ac (< 1 ha) 
is in State ownership; and 1,440 ac (583 ha) is in other ownership. 
Occupied habitat includes O'Donnell and Turkey creeks and Canelo Hills 
Cienega. This unit is considered to be occupied at the time of listing 
and western yellow-billed cuckoos occupy and nest in the trees 
bordering creeks and cienega wetlands during the breeding season 
(Corman and Magill 2000, p. 43; AGFD 2018, entire; Cornell Lab of 
Ornithology 2020 (eBird data); Drost et al. 2020, pp. 31, 34; National 
Audubon Society 2020b, entire; Service 2020c, entire). The unit 
provides the habitat component provided in PBF 1 and the prey component 
in PBF 2. Hydrologic processes, in natural or altered systems, that 
provide for maintaining and regenerating breeding habitat as identified 
in PBF 3 occurs within this unit (monsoonal events). This unit is part 
of the area within the Southwest portion of the DPS that provides 
breeding habitat for the western yellow-billed cuckoo, which is outside 
mainstem rivers and their tributaries as identified in our conservation 
strategy. The site also provides a movement corridor and migratory 
stop-over habitat for western yellow-billed cuckoos. Part of this unit 
overlaps with the Appleton-Whittell Research Ranch of the National 
Audubon Society IBA (National Audubon Society 2020b, entire). Stringers 
of trees along the drainages in this primarily oak savanna include oak 
with some cottonwood, mesquite, and desert willow (National Audubon 
Society 2020b, entire).
    Unit 50: AZ-38 Arivaca Lake, Pima and Santa Cruz Counties, Arizona.
    Critical habitat Unit AZ-38 is 1,365 ac (553 ha) in extent and is a 
9-mi (14-km)-long continuous segment of stream near Arivaca Lake in 
Pima and Santa Cruz Counties, Arizona. Approximately 567 ac (229 ha) is 
in Federal ownership; 417 ac (169 ha) is in State ownership; and 381 ac 
(154 ha) is in other ownership. The unit is considered to have been 
occupied at the time of listing and western yellow-billed cuckoos 
occupy this site regularly during the breeding season (Corman and 
Magill 2000, pp. 42-43; MacFarland and Horst 2015, pp. 17-18; AGFD 
2018, entire; Cornell Lab of Ornithology 2020 (eBird data); Drost et 
al. 2020, pp. 30, 34). This unit is part of the area within the 
Southwest portion of the DPS that provides breeding habitat for the 
western yellow-billed cuckoo, which is outside mainstem rivers and 
their tributaries as identified in our conservation strategy. The unit 
provides the habitat component provided in PBF 1 and the prey component 
in PBF 2. Hydrologic processes, in natural or altered systems, that 
provide for maintaining and regenerating breeding habitat as identified 
in PBF 3 occurs within this unit (monsoonal events). The site also 
provides a movement corridor and migratory stop-over habitat for 
western yellow-billed cuckoos. This unit is part of the Arivaca Cienega 
and Creek IBA

[[Page 20866]]

(National Audubon Society 2013a, entire). Habitat includes mesquite, 
willow, cottonwood, ash, and hackberry (MacFarland and Horst 2015, p. 
121).
    Unit 51: AZ-39 Peppersauce Canyon, Pinal County, Arizona.
    Critical habitat Unit AZ-39 is 349 ac (141 ha) in extent and is a 
4-mi (6-km)-long continuous segment of stream within Peppersauce Canyon 
in Pinal County, Arizona. Approximately 317 ac (128 ha) is in Federal 
ownership, and 32 ac (13 ha) is in other ownership. The unit is 
considered to have been occupied at the time of listing. Western 
yellow-billed cuckoo occupy and breed in the Madrean evergreen woodland 
drainage in the Santa Catalina Mountains on the Coronado National 
Forest (MacFarland and Horst 2015, pp. 53-54; MacFarland and Horst 
2017, pp. 47-50; MacFarland and Horst 2019, pp. 30-31; Cornell Lab of 
Ornithology 2020 (eBird data); Drost et al. 2020, pp. 32, 35). This 
unit is part of the area within the Southwest portion of the DPS that 
provides breeding habitat for the western yellow-billed cuckoo, which 
is outside mainstem rivers and their tributaries as identified in our 
conservation strategy.
    The unit provides the habitat component provided in PBF 1 and the 
prey component in PBF 2. Hydrologic processes, in natural or altered 
systems, that provide for maintaining and regenerating breeding habitat 
as identified in PBF 3 occurs within this unit (monsoonal events). This 
unit is within the Tucson Mountains Sky Islands and Sonoran Uplands IBA 
(National Audubon Society 2020e, entire). The drainage includes 
riparian and Madrean evergreen woodland vegetation in occupied habitat 
consisting of oak, sycamore, hackberry, juniper, cottonwood, mesquite, 
walnut, and ocotillo (MacFarland and Horst 2015, p. 122; MacFarland and 
Horst 2016, p. 59).
    Unit 52: AZ-40 Pena Blanca Canyon, Santa Cruz County, Arizona.
    Critical habitat Unit AZ-40 is 483 ac (195 ha) in extent and is a 
7-mi (11-km)-long continuous segment of stream within Pena Blanca 
Canyon in Santa Cruz County, Arizona. The entire unit is in Federal 
ownership. We have excluded the 60-ft (18-m) Roosevelt Reservation from 
this unit (see Exclusions). Pena Blanca Lake is also included in this 
unit. The unit is considered to have been occupied at the time of 
listing. Western yellow-billed cuckoos occupy and nest in this unit 
regularly during the breeding season (Helentjaris 2014, entire; 
MacFarland and Horst 2015, pp. 19-22; AGFD 2018, entire; Cornell Lab of 
Ornithology 2020 (eBird data)). This unit is part of the area within 
the Southwest portion of the DPS that provides breeding habitat for the 
western yellow-billed cuckoo, which is outside mainstem rivers and 
their tributaries as identified in our conservation strategy. The unit 
provides the habitat component provided in PBF 1 and the prey component 
in PBF 2. Hydrologic processes, in natural or altered systems, that 
provide for maintaining and regenerating breeding habitat as identified 
in PBF 3 occurs within this unit (monsoonal events). Pena Blanca Canyon 
and Lake, in Coronado National Forest, are part of the Atascosa 
Highlands IBA (Arizona IBA 2020a, entire). The occupied drainage 
includes riparian and Madrean evergreen woodland vegetation consisting 
primarily of oak and willow, with small amounts of juniper, mesquite, 
and ash (MacFarland and Horst 2015, p. 121).
    Unit 53: AZ-41 Box Canyon, Pima County, Arizona.
    Critical habitat Unit AZ-41 is 536 ac (217 ha) in extent and is a 
7-mi (11-km)-long continuous segment of stream within Box Canyon in 
Pima County, Arizona. Approximately 317 ac (128 ha) is in Federal 
ownership; 184 ac (74 ha) is in State ownership; and 34 ac (14 ha) is 
in other ownership. The unit is considered to have been occupied at the 
time of listing. Western yellow-billed cuckoos are occupying and 
nesting in this unit regularly during the breeding season (Sebesta 
2014, entire; MacFarland and Horst 2015, entire; MacFarland and Horst 
2017, pp. 53-56; Cornell Lab of Ornithology 2020 (eBird data); Drost et 
al. 2020, pp. 13, 15, 31, 33, 35, 36). This unit is within the Santa 
Rita Mountains IBA (National Audubon Society 2016f, entire) (see 
description under Unit 43; AZ-31 Florida Wash). This unit is part of 
the area within the Southwest portion of the DPS that provides breeding 
habitat for the western yellow-billed cuckoo, which is outside mainstem 
rivers and their tributaries as identified in our conservation 
strategy. The unit provides the habitat component provided in PBF 1 and 
the prey component in PBF 2. Hydrologic processes, in natural or 
altered systems, that provide for maintaining and regenerating breeding 
habitat as identified in PBF 3 occurs within this unit (monsoonal 
events). The site also provides a movement corridor and migratory stop-
over habitat for western yellow-billed cuckoos. This drainage includes 
riparian, desert scrub, and Madrean evergreen woodland vegetation in 
occupied habitat consisting primarily of mesquite, ash, ocotillo, 
willow, oak, sycamore, cottonwood, walnut, desert willow, hackberry, 
and juniper (MacFarland and Horst 2015, pp. 124, 129; Service 2020c, 
entire).
    Unit 54: AZ-42 Rock Corral Canyon, Santa Cruz County, Arizona.
    Critical habitat Unit AZ-42 is 214 ac (87 ha) in extent and is a 3-
mi (5-km)-long continuous segment of stream within Rock Corral Canyon 
in Santa Cruz County, Arizona. Approximately 190 ac (77 ha) is in 
Federal ownership, and 25 ac (10 ha) is in State ownership. The unit is 
considered to have been occupied at the time of listing. Western 
yellow-billed cuckoos occupy and nest in this unit during the breeding 
season (MacFarland and Horst 2015, pp. 5, 23-24; Cornell Lab of 
Ornithology 2020 (eBird data); Drost et al. 2020, pp. 30, 34). This 
unit is part of the area within the Southwest portion of the DPS that 
provides breeding habitat for the western yellow-billed cuckoo, which 
is outside mainstem rivers and their tributaries as identified in our 
conservation strategy. The unit provides the habitat component provided 
in PBF 1 and the prey component in PBF 2. Hydrologic processes, in 
natural or altered systems, that provide for maintaining and 
regenerating breeding habitat as identified in PBF 3 occurs within this 
unit (monsoonal events). The site also provides a movement corridor and 
migratory stop-over habitat for western yellow-billed cuckoos. This 
unit is part of the Atascosa Highlands IBA (Arizona IBA 2020a, entire). 
This drainage includes riparian, desert scrub, and Madrean evergreen 
woodland vegetation in occupied habitat composed primarily of mesquite, 
with some oak and cottonwood (MacFarland and Horst 2015, p. 121).
    Unit 55: AZ-43 Lyle Canyon, Santa Cruz and Cochise Counties, 
Arizona.
    Critical habitat Unit AZ-43 is 1,293 ac (523 ha) in extent and is a 
7.5-mi (12-km)-long continuous segment of stream within Lyle Canyon in 
Santa Cruz and Cochise Counties, Arizona. Approximately 716 ac (290 ha) 
is in Federal ownership and 577 ac (234 ha) is in other ownership. The 
site is considered occupied at the time of listing. Western yellow-
billed cuckoo occupy Madrean evergreen woodland drainages during the 
breeding season in Korn and Lyle Canyons (MacFarland and Horst 2015, 
pp. 33-36; Drost et al. 2020, p. 31; Service 2020c, entire).
    This unit is part of the area within the Southwest portion of the 
DPS that provides breeding habitat for the western yellow-billed 
cuckoo, which is outside mainstem rivers and their tributaries as 
identified in our conservation strategy. The unit provides

[[Page 20867]]

the habitat component provided in PBF 1 and the prey component in PBF 
2. Hydrologic processes, in natural or altered systems, that provide 
for maintaining and regenerating breeding habitat as identified in PBF 
3 occurs within this unit (monsoonal events). The site also provides a 
movement corridor and migratory stop-over location. Part of this unit 
is within Huachuca Mountains IBA (National Audubon Society 2013b, 
entire). Occupied overstory habitat in Korn Canyon is dominated by oak 
and juniper, with some sycamore and ash (MacFarland and Horst 2015, pp. 
121-122). Occupied overstory habitat in Lyle Canyon is dominated by oak 
and juniper, with some sycamore, pinion pine, and walnut in some areas 
and dominated by oak in other areas with cottonwood, mesquite, and 
desert willow (MacFarland and Horst 2015, p. 122; National Audubon 
Society 2013b, entire).
    Unit 56: AZ-44 Parker Canyon Lake, Santa Cruz and Cochise Counties, 
Arizona.
    Critical habitat Unit AZ-44 is 1,499 ac (607 ha) in extent and is a 
10.5-mi (16-km)-long continuous segment of stream near Parker Canyon 
Lake in Santa Cruz and Cochise Counties, Arizona. Approximately 1,424 
ac (576 ha) is in Federal ownership, and 75 ac (30 ha) is in other 
ownership. The unit is considered to have been occupied at the time of 
listing. Western yellow-billed cuckoo occupy and nest in Madrean 
evergreen woodland drainages during the breeding season in Collins and 
Merrit Canyons (MacFarland and Horst 2015, pp. 27-30, 37-38; Cornell 
Lab of Ornithology 2020 (eBird data); Drost et al. 2020, pp. 31, 34). 
This unit is part of the area within the Southwest portion of the DPS 
that provides breeding habitat for the western yellow-billed cuckoo, 
which is outside mainstem rivers and their tributaries as identified in 
our conservation strategy. The unit provides the habitat component 
provided in PBF 1 and the prey component in PBF 2. Hydrologic 
processes, in natural or altered systems, that provide for maintaining 
and regenerating breeding habitat as identified in PBF 3 occurs within 
this unit (monsoonal events). The site also provides a movement 
corridor and migratory stop-over habitat for western yellow-billed 
cuckoos. Part of this unit is within the Huachuca Mountains IBA 
(National Audubon Society 2013b, entire). Dominant overstory vegetation 
in occupied habitat in Collins and Merritt canyons consists of juniper 
and oak, with ash, pine, cottonwood, and walnut (MacFarland and Horst 
2015, pp. 121-122). Merritt Canyon, north of Parker Canyon Lake, is a 
shallow and wide drainage with large trees and flowing water 
(MacFarland and Horst 2015, p. 37).
    Unit 57: AZ-45 Barrel Canyon, Pima County, Arizona.
    Critical habitat Unit AZ-45 is 920 ac (372 ha) in extent and is a 
5-mi (8-km)-long continuous segment of stream within Barrel Canyon in 
Pima County, Arizona. Approximately 755 ac (306 ha) is in Federal 
ownership (Coronado National Forest) and 164 ac (66 ha) is in other 
ownership. The unit is considered to have been occupied at the time of 
listing. Western yellow-billed cuckoo occupy the Madrean evergreen 
woodland drainages during the breeding season (Westland Resources, Inc. 
2019, entire). This unit is part of the area within the Southwest 
portion of the DPS that provides breeding habitat for the western 
yellow-billed cuckoo, which is outside mainstem rivers and their 
tributaries as identified in our conservation strategy. The unit 
provides the habitat component provided in PBF 1 and the prey component 
in PBF 2. Hydrologic processes, in natural or altered systems, that 
provide for maintaining and regenerating breeding habitat as identified 
in PBF 3 occurs within this unit (monsoonal events). The site also 
provides a movement corridor and migratory stop-over habitat for 
western yellow-billed cuckoos. This unit is part of the Santa Rita 
Mountains IBA (National Audubon Society 2016f, entire). Vegetation in 
occupied habitat is oak, mesquite, and desert willow, with an 
occasional sycamore, walnut, Goodding's willow, and juniper.
    Unit 58: AZ-46 Gardner Canyon; Pima and Santa Cruz Counties, 
Arizona.
    Critical habitat Unit AZ-46 is 5,801 ac (2,056 ha) in extent and is 
a 14-mi (23-km)-long continuous segment of stream within Gardner Canyon 
in Pima and Santa Cruz Counties, Arizona. Approximately 4,320 ac (1,748 
ha) is in Federal ownership; 290 ac (117 ha) is in State ownership; and 
471 ac (191 ha) is in other ownership. This unit includes suitable 
habitat within BLM's Las Cienegas National Conservation Area (NCA) that 
connects Coronado National Forest's Gardner Canyon with BLM's upper 
Cienega Creek (BLM 2003, entire). The unit is considered to have been 
occupied at the time of listing. Western yellow-billed cuckoos occupy 
and nest in Gardner Canyon during the breeding season. Cornell Lab of 
Ornithology 2020 (eBird data); Drost et al. 2020; pp. 15, 33, 35, 36; 
Service 2020c, entire). This unit is part of the area within the 
Southwest portion of the DPS that provides breeding habitat for the 
western yellow-billed cuckoo, which is outside mainstem rivers and 
their tributaries as identified in our conservation strategy. The unit 
provides the habitat component provided in PBF 1 and the prey component 
in PBF 2. Hydrologic processes, in natural or altered systems, that 
provide for maintaining and regenerating breeding habitat as identified 
in PBF 3 occurs within this unit (monsoonal events). The site also 
provides a movement corridor and migratory stop-over habitat for 
western yellow-billed cuckoos. This unit is part of the Santa Rita 
Mountains IBA and Las Cienegas NCA IBA (National Audubon Society 2016f, 
entire; 2020d, entire). Habitat in Gardner Canyon is Madrean evergreen 
woodland with oak, desert willow, mesquite, and juniper.
    Unit 59: AZ-47 Brown Canyon; Pima County, Arizona.
    Critical habitat Unit AZ-47 is 1,113 ac (451 ha) in extent and is 
an 8-mi (13-km)-long continuous segment of stream within Brown Canyon 
in Pima County, Arizona. Approximately 726 ac (294 ha) is in Federal 
ownership; 228 ac (92 ha) is in State ownership; and 159 ac (64 ha) is 
in other ownership. This site is considered to have been occupied at 
the time of listing. The upper portion of Brown Canyon and Wash, part 
of Buenos Aires National Wildlife Refuge, is regularly occupied by 
nesting western yellow-billed cuckoos during the breeding season 
(Flatland 2011, entire; American Birding Association 2012, entire; Pima 
County 2016, p. A-78; Corson 2018, pp. 11-12; Drost et al. 2020, pp. 
30, 31, 34). Western yellow-billed cuckoos are nesting in many 
drainages in the Altar Valley, including several drainages within the 
San Bernardino National Wildlife Refuge that are not being designated 
as critical habitat (Service 2020c, entire). This unit is part of the 
area within the Southwest portion of the DPS that provides breeding 
habitat for the western yellow-billed cuckoo, which is outside mainstem 
rivers and their tributaries as identified in our conservation 
strategy. The unit provides the habitat component provided in PBF 1 and 
the prey component in PBF 2. Hydrologic processes, in natural or 
altered systems, that provide for maintaining and regenerating breeding 
habitat as identified in PBF 3 occurs within this unit (monsoonal 
events). The site also provides a movement corridor and migratory stop-
over habitat for western yellow-billed cuckoos. Brown Canyon includes a 
broad mix of dominant plant species that change with elevation and 
topography, including Madrean evergreen woodland, desert scrub, and

[[Page 20868]]

desert grassland. At lower elevations, vegetation is predominantly 
Sonoran Desert uplands; at higher elevations, vegetation is 
predominantly oak woodlands (Powell and Steidl 2015, p. 68). Vegetation 
includes a mix of mesquite, oaks, hackberry, sycamore, walnut, acacia, 
mimosa, and juniper in the drainage with mimosa and grass or mesquite 
and grass dominated hillsides (Powell and Steidl 2015, pp. 67, 69; 
Corson 2018, p. 6).
    Unit 60: AZ-48 Sycamore Canyon, Patagonia Mountains; Santa Cruz 
County, Arizona.
    Critical habitat Unit AZ-48 is 604 ac (245 ha) in extent and is a 
5-mi (8-km)-long continuous segment of stream within Sycamore Canyon in 
Santa Cruz County, Arizona. The unit is entirely within Federal lands 
within the Coronado National Forest and is considered to have been 
occupied at the time of listing. Sycamore Canyon is a well-vegetated 
riparian corridor in Madrean evergreen woodland in the Patagonia 
Mountains and is occupied by western yellow-billed cuckoos during the 
breeding season (MacFarland and Horst 2015, pp. 91, 92; Cornell Lab of 
Ornithology 2020 (eBird data)). This unit lies within the Patagonia 
Mountains IBA (National Audubon Society 2016g, entire). This unit is 
part of the area within the Southwest portion of the DPS that provides 
breeding habitat for the western yellow-billed cuckoo, which is outside 
mainstem rivers and their tributaries as identified in our conservation 
strategy. The unit provides the habitat component provided in PBF 1 and 
the prey component in PBF 2. Hydrologic processes, in natural or 
altered systems, that provide for maintaining and regenerating breeding 
habitat as identified in PBF 3 occurs within this unit (monsoonal 
events). The site also provides a movement corridor and migratory stop-
over habitat for western yellow-billed cuckoos. Dominant overstory 
vegetation where western yellow-billed cuckoos have been found during 
surveys was primarily oak, ash, cottonwood, and mesquite, and dominant 
midstory vegetation was mesquite, Baccharis sp., ash, Mimosa sp., 
grape, and skunkbush (Rhus trilobata) (MacFarland and Horst 2015, pp. 
91, 124, 129).
    Unit 61: AZ-49 Washington Gulch; Santa Cruz County, Arizona.
    Critical habitat Unit AZ-49 is 585 ac (237 ha) in extent and is a 
5-mi (8-km)-long continuous segment of stream within Washington Gulch 
in Santa Cruz County, Arizona. We have excluded the 60-ft (18-m) 
Roosevelt Reservation from this unit (see Exclusions). Approximately 
361 ac (146 ha) is in Federal ownership, and 222 ac (90 ha) is in other 
ownership. The unit is considered to have been occupied at the time of 
listing. Washington Gulch is a riparian corridor in Madrean evergreen 
woodland in the Patagonia Mountains in the Coronado National Forest and 
is occupied by western yellow-billed cuckoos during the breeding season 
(MacFarland and Horst 2015, pp. 91-94; Cornell Lab of Ornithology 2020 
(eBird data)). This unit is part of the area within the Southwest 
portion of the DPS that provides breeding habitat for the western 
yellow-billed cuckoo, which is outside mainstem rivers and their 
tributaries as identified in our conservation strategy. The unit 
provides the habitat component provided in PBF 1 and the prey component 
in PBF 2. Hydrologic processes, in natural or altered systems, that 
provide for maintaining and regenerating breeding habitat as identified 
in PBF 3 occurs within this unit (monsoonal events). The site also 
provides a movement corridor and migratory stop-over habitat for 
western yellow-billed cuckoos. This drainage contains an overstory of 
large oak trees with some juniper and a midstory of manzanita and 
juniper (MacFarland and Horst 2015; pp. 93, 124, 129). This unit lies 
within the Patagonia Mountains IBA.
    Unit 62: AZ-50 Paymaster Spring and Mowrey Wash; Santa Cruz County, 
Arizona.
    Critical habitat Unit AZ-50 is 903 ac (365 ha) in extent and is 
made up of segments of stream within Paymaster Spring and Mowrey Wash 
totaling 5.5 mi (8.8 km) in Santa Cruz County, Arizona. Approximately 
390 ac (158 ha) is in Federal ownership, and 512 ac (207 ha) is in 
other ownership. The unit is considered to have been occupied at the 
time of listing. Paymaster Creek is a riparian corridor in Madrean 
evergreen woodland in the Patagonia Mountains in the Coronado National 
Forest and is occupied by western yellow-billed cuckoos during the 
breeding season (MacFarland and Horst 2015, p. 89; Cornell Lab of 
Ornithology 2020 (eBird data); Service 2020c, entire). This unit is 
part of the area within the Southwest portion of the DPS that provides 
breeding habitat for the western yellow-billed cuckoo, which is outside 
mainstem rivers and their tributaries as identified in our conservation 
strategy. The unit provides the habitat component provided in PBF 1 and 
the prey component in PBF 2. Hydrologic processes, in natural or 
altered systems, that provide for maintaining and regenerating breeding 
habitat as identified in PBF 3 occurs within this unit (monsoonal 
events). The site also provides a movement corridor and migratory stop-
over habitat for western yellow-billed cuckoos. This drainage includes 
riparian and Madrean evergreen woodland vegetation including oak, 
walnut, juniper, and some pine as the most dominant tree species where 
western yellow-billed cuckoos were detected during surveys (MacFarland 
and Horst 2015, p. 123; WestLand Resources, Inc. 2019, entire). This 
unit lies within the Patagonia Mountains IBA.
    Unit 63: CA-1 Sacramento River; Colusa, Glenn, Butte, and Tehama 
Counties, California.
    Critical habitat unit CA-1 is 34,201 ac (13,841 ha) in extent and 
is a 69-mi (111-km)-long continuous segment of the Sacramento River 
starting 5 mi (8 km) southeast of the city of Red Bluff in Tehama 
County, California, to the downstream boundary of the Colusa-Sacramento 
River State Recreation Area next to the town of Colusa in Colusa 
County, California. Approximately 2,123 ac (859 ha) is in Federal 
ownership; 485 ac (196 ha) is in State ownership; and 31,593 ac (12,785 
ha) is in other ownership. The unit is considered to have been occupied 
at the time of listing. This site has been a significant nesting area 
(nearly 100 nesting pairs in early 1970s) for the western yellow-billed 
cuckoo in the past but has been in decline (Dettling and Howell 2011a, 
pp. 30-35; Dettling and Howell 2011b, entire; Dettling et al. 2015, p. 
2). This unit is part of the area outside the Southwest portion of the 
DPS that provides breeding habitat for the western yellow-billed cuckoo 
that is in a different ecological setting as identified in our 
conservation strategy. The unit provides the habitat component provided 
in PBF 1 and the prey component in PBF 2. Hydrologic processes, in 
natural or altered systems, that provide for maintaining and 
regenerating breeding habitat as identified in PBF 3 occur within this 
unit but depend on river flows and flood timing. Survey efforts in the 
early 1970s detected approximately 3 western yellow-billed cuckoo 
detections per day (60-96 nesting pairs). In the late 1980s this number 
dropped to less than 1.5 per day (35 nesting pairs) and in 2012 the 
survey efforts identified 1 to less than 1 sighting per day (28 nesting 
pairs) (Dettling et al. 2015, pp. 11-13). It is an important area to 
maintain for occupancy to promote species recovery.
    Unit 64: CA-2 South Fork Kern River Valley; Kern County, 
California.
    Critical habitat Unit CA-2 is 2,379 ac (963 ha) in extent and is a 
13-mi (21-km)-long continuous segment of the

[[Page 20869]]

South Fork Kern River from west of the settlement of Canebrake 
downstream to near Lake Isabella in Kern County, California. We have 
excluded approximately 261 ac (108 ha) of land from this unit (see 
Exclusions). Approximately 85 ac (34 ha) is Federal land, 419 ac (170 
ha) is State land; and 1,875 ac (756 ha) is in other ownership. The 
unit is considered to have been occupied at the time of listing. This 
unit is part of the area outside the Southwest portion of the DPS that 
provides breeding habitat for the western yellow-billed cuckoo that is 
in a different ecological setting as identified in our conservation 
strategy. The unit provides the habitat component provided in PBF 1 and 
the prey component in PBF 2. Hydrologic processes, in natural or 
altered systems, that provide for maintaining and regenerating breeding 
habitat as identified in PBF 3 occur within this unit but depend on 
river flows and flood timing. The site also provides a stop-over area 
or movement corridor between western yellow-billed cuckoos breeding on 
the Colorado River and the Sacramento River. Much of the privately 
owned land is owned and managed by Audubon California as the Kern River 
Preserve. Numbers of breeding western yellow-billed cuckoos have been 
relatively consistent at this site. The habitat at this site is 
improving based on reduction of cattle grazing and habitat restoration 
activities.
    Unit 65: ID-1 Snake River 1; Bannock and Bingham Counties, Idaho.
    Critical habitat unit ID-1 is 5,632 ac (2,276 ha) in extent and is 
a continuous segment of the Snake River from near the upstream end of 
the American Falls Reservoir in Bannock County upstream to a point on 
the Snake River approximately 2 mi (3 km) west of the Town of Blackfoot 
in Bingham County, Idaho. We have excluded approximately 4,023 ac 
(1,633 ha) of land from this unit (see Exclusions). Approximately 2,863 
ac (1,158 ha) is in Federal ownership; 1,209 ac (489 ha) is in State 
ownership; and 1,551 ac (628 ha) is in other ownership. The unit is 
considered to have been occupied at the time of listing and is 
consistently occupied by western yellow-billed cuckoos during the 
breeding season. This unit is part of the area outside the Southwest 
portion of the DPS that provides breeding habitat for the western 
yellow-billed cuckoo that is in a different ecological setting as 
identified in our conservation strategy. The unit provides the habitat 
component provided in PBF 1 and the prey component in PBF 2. Hydrologic 
processes, in natural or altered systems, that provide for maintaining 
and regenerating breeding habitat as identified in PBF 3 occur within 
this unit but depend on river flows and flood timing. The unit is at 
the northern limit of the species' current breeding range.
    Unit 66: ID-2 Snake River 2; Bonneville, Madison, and Jefferson 
Counties, Idaho.
    Critical habitat unit ID-2 is 11,442 ac (4,630 ha) in extent and is 
a 40-mi (64-km)-long continuous segment of the Snake River from the 
bridge crossing on the Snake River 2 mi (3 km) east of the Town of 
Roberts in Madison County through Jefferson County and upstream to the 
vicinity of the mouth of Table Rock Canyon in Bonneville County, Idaho. 
Approximately 5,862 ac (2,372 ha) is in Federal ownership; 1,940 ac 
(785 ha) is in State ownership; and 3,641 ac (1,473 ha) is in other 
ownership. Portions of this unit are within lands designated as the 
Snake River ACEC by BLM, and the Land and Water Conservation Fund 
(LWCF) program has purchased 32 properties in fee title and set aside 
approximately 42 conservation easements (22,400 ac (9,065 ha)) within 
the ACEC. The western yellow-billed cuckoo has been identified as a 
species of concern in the ACEC. The unit is considered to have been 
occupied at the time of listing and is consistently occupied by western 
yellow-billed cuckoos during the breeding season. This unit is part of 
the area outside the Southwest portion of the DPS that provides 
breeding habitat for the western yellow-billed cuckoo that is in a 
different ecological setting as identified in our conservation 
strategy. The unit provides the habitat component provided in PBF 1 and 
the prey component in PBF 2. Hydrologic processes, in natural or 
altered systems, that provide for maintaining and regenerating breeding 
habitat as identified in PBF 3 occur within this unit but depend on 
river flows and flood timing. State and County road crossings account 
for less than 1 percent of total ownership of this proposed unit. The 
unit is at the northern limit of the species' current breeding range.
    Unit 67: ID-3 Henry's Fork and Teton Rivers; Madison and Fremont 
Counties, Idaho.
    Critical habitat Unit ID-3 is 4,641 ac (1,878 ha) in extent and is 
a 15-mi (24-km)-long continuous segment of the Henry's Fork of the 
Snake River in Madison County from approximately 16 km (10 mi) upstream 
of the confluence with the Snake River to a point on the river 
approximately 1.6 km (1 mi) downstream of the town of St. Anthony in 
Fremont County, Idaho. Approximately 756 ac (306 ha) is in Federal 
ownership; 511 ac (207 ha) is in State ownership; and 3,374 ac (1,365 
ha) is in other ownership. This unit is occupied by western yellow-
billed cuckoos during the breeding season and represents the northern 
limit of the species' currently known breeding range. This unit is part 
of the area outside the Southwest portion of the DPS that provides 
breeding habitat for the western yellow-billed cuckoo that is in a 
different ecological setting as identified in our conservation 
strategy. The unit contains all the physical or biological features 
essential to the conservation of the species and was occupied at the 
time of listing and is still considered occupied. Inclusion of this 
unit contributes to the proposed critical habitat designation 
representing the full breeding range of the DPS. New comments by the 
American Bird Conservancy during the previous comment period, along 
with survey and habitat information previously submitted by the BLM and 
Idaho Department of Fish and Game, show western yellow-billed cuckoos 
in the expanded area. In response to the comments and new information 
received, we are amending the previously proposed boundaries of this 
unit to incorporate additional habitat upstream to approximately 1.6 km 
(1 mi) downstream of the town of St. Anthony, Fremont County, Idaho. 
Portions of this unit were removed based on our reevaluation of the 
habitat.
    Unit 68: CO-1 Colorado River; Mesa County, Colorado.
    Critical habitat unit CO-1 is 3,137 ac (1,269 ha) in extent and is 
a 25-mi (40-km)-long continuous segment of the Colorado River in the 
vicinity of Grand Junction in Mesa County, Colorado. We have excluded 
approximately 866 ac (351 ha) of land from this unit (see Exclusions). 
Approximately 196 ac (79 ha) is in Federal ownership; 174 ac (70 ha) is 
in State ownership; and 2,766 ac (1,119 ha) is in other ownership. The 
unit is considered to have been occupied at the time of listing and 
occurs within the unit in the breeding season. This unit is part of the 
area outside the Southwest portion of the DPS that provides breeding 
habitat for the western yellow-billed cuckoo that is in a different 
ecological setting as identified in our conservation strategy. The unit 
provides the habitat component provided in PBF 1 and the prey component 
in PBF 2. Hydrologic processes, in natural or altered systems, that 
provide for maintaining and regenerating breeding habitat as identified 
in PBF 3 occur within this unit but depend on river flows and flood 
timing. The site also provides a migration stop-over habitat for 
western

[[Page 20870]]

yellow-billed cuckoos moving farther north. The Colorado River Wildlife 
Management Area managed by the U.S. Fish and Wildlife Service holds 
conservation easements on several private parcels in this unit.
    Unit 69: CO-2 North Fork Gunnison River; Delta County, Colorado.
    Critical habitat unit CO-2 is 2,326 ac (941 ha) in extent and is a 
16-mi (26-km)-long continuous segment of the North Fork of the Gunnison 
River between Hotchkiss and Paeonia in Delta County, Colorado. 
Approximately 115 ac (47 ha) is in Federal ownership, and 2,211 ac (895 
ha) is in other ownership. This unit is considered to have been 
occupied at the time of listing and is consistently used by western 
yellow-billed cuckoos during the breeding season. This unit is part of 
the area outside the Southwest portion of the DPS that provides 
breeding habitat for the western yellow-billed cuckoo that is in a 
different ecological setting as identified in our conservation 
strategy. The unit provides the habitat component provided in PBF 1 and 
the prey component in PBF 2. Hydrologic processes, in natural or 
altered systems, that provide for maintaining and regenerating breeding 
habitat as identified in PBF 3 occur within this unit but depend on 
river flows and flood timing. The site also provides migratory stop-
over habitat for western yellow-billed cuckoos moving farther north.
    Unit 70: UT-1 Green River 1; Uintah and Duchesne Counties, Utah.
    Critical habitat unit UT-1 is 13,273 ac (5,371 ha) in extent and is 
made up of segments of the Green River and Duchesne Rivers in the 
vicinity of Ouray in Uintah County, Utah. We have excluded 
approximately 15,017 ac (6,077 ha) of land from this unit (see 
Exclusions). Approximately 4,700 ac (1,902 ha) is in Federal ownership; 
4,162 ac (1,684 ha) is in State ownership; and 4,411 ac (1,785 ha) is 
in other ownership. The unit is considered to have been occupied at the 
time of listing and has been consistently used by western yellow-billed 
cuckoos during the breeding season. This unit is part of the area 
outside the Southwest portion of the DPS that provides breeding habitat 
for the western yellow-billed cuckoo that is in a different ecological 
setting as identified in our conservation strategy. The unit provides 
the habitat component provided in PBF 1 and the prey component in PBF 
2. Hydrologic processes, in natural or altered systems, that provide 
for maintaining and regenerating breeding habitat as identified in PBF 
3 occur within this unit but depend on river flows and flood timing. 
The site also provides a movement corridor for western yellow-billed 
cuckoos moving farther north. This unit includes areas of riparian 
vegetation that area suitable as western yellow-billed cuckoo breeding 
habitat and connected areas of riparian vegetation that are suitable as 
foraging habitat. Recent surveys in this area revealed multiple western 
yellow-billed cuckoo detections.
    Unit 71: UT-2 Green River 2; Emery and Grand Counties, Utah.
    Critical habitat Unit UT-2 is 1,135 ac (459 ha) in extent and is an 
8-mi (13-km)-long continuous segment of the Green River north of the 
town of Green River in Emery and Grand Counties, Utah. Approximately 40 
ac (16 ha) is in Federal ownership; 632 ac (256 ha) is in State 
ownership; and 462 ac (187 ha) is in other ownership. The unit is 
considered to have been occupied at the time of listing. Recent surveys 
have shown that this unit has a number of western yellow-billed cuckoos 
during the breeding season (Utah Division of Wildlife Resources (UDWR) 
2012, entire; UDWR 2013, entire; UDWR 2014, entire). This unit is part 
of the area outside the Southwest portion of the DPS that provides 
breeding habitat for the western yellow-billed cuckoo that is in a 
different ecological setting as identified in our conservation 
strategy. The unit provides the habitat component provided in PBF 1 and 
the prey component in PBF 2. Hydrologic processes, in natural or 
altered systems, that provide for maintaining and regenerating breeding 
habitat as identified in PBF 3 occur within this unit but depend on 
river flows and flood timing. The site also provides migratory stop-
over habitat for western yellow-billed cuckoos. This unit includes 
areas of riparian vegetation that are suitable as western yellow-billed 
cuckoo breeding habitat and connected areas of riparian vegetation that 
are suitable as foraging habitat.
    Unit 72: TX-1 Terlingua Creek and Rio Grande; Brewster County, 
Texas.
    Critical habitat unit TX-1 is 7,913 ac (3,202 ha) in extent and is 
a 45-mi (72-km)-long continuous segment from lower Terlingua Creek to 
the Rio Grande in Brewster County, Texas. Approximately 7,792 ac (3,153 
ha) is in Federal ownership in Big Bend National Park, and 121 ac (49 
ha) is in other ownership. Because this unit is along the border 
between United States and Mexico, we delineated the southern edge of 
the unit to coincide with the National Park boundary. The unit is 
considered to have been occupied at the time of listing and has been 
consistently occupied by western yellow-billed cuckoos during the 
breeding season. This unit is part of the area outside the Southwest 
portion of the DPS that provides breeding habitat for the western 
yellow-billed cuckoo that is in a different ecological setting as 
identified in our conservation strategy. The unit provides the habitat 
component provided in PBF 1 and the prey component in PBF 2. Hydrologic 
processes, in natural or altered systems, that provide for maintaining 
and regenerating breeding habitat as identified in PBF 3 occur within 
this unit but depend on river flows and flood timing. The site also 
provides a north-south movement corridor for western yellow-billed 
cuckoos breeding farther north. Although tamarisk, a nonnative species 
that may reduce the habitat's value, is a major component of this unit, 
the area still provides habitat for the species and considered 
essential. This unit includes areas of riparian vegetation that are 
suitable as western yellow-billed cuckoo breeding habitat and connected 
areas of riparian vegetation that are suitable as foraging habitat.
    In our review of all units along the U.S./Mexico border, we also 
reviewed Unit 72 (TX-1 Terlingue Creek/Rio Grande). Unit 72 occurs 
along the border mostly in Big Bend National Park and includes Santa 
Elena Canyon and several other heavily used public use areas along the 
National Park's southern boundary in Brewster County, Texas. The NPS 
manages the land and natural resources at Big Bend National Park, and 
western yellow-billed cuckoo have been observed on a regular basis at 
Cottonwood Campground at Santa Elena Canyon and the area provides 
significant value as breeding habitat for the species. Flow of the Rio 
Grande within this unit is persistent which supports relatively intact 
riparian vegetation along this section of the river. Designation of 
critical habitat here highlights the conservation needs of the western 
yellow-billed cuckoo and Rio Grande riparian communities to the general 
public and Federal partners. Because management of natural resource and 
sensitive species are conducted by the NPS within this unit, Texas does 
not include the Roosevelt Reservation, and any border activities would 
need to be coordinated with NPS, we did not consider the exclusion of 
areas within Unit 72.

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,

[[Page 20871]]

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. The western yellow-billed cuckoo occupies habitat 
during the breeding season (generally between May-September); 
consequently, Federal actions conducted during the breeding season must 
ensure that the actions do not jeopardize the western yellow-billed 
cuckoo. Additionally, Federal activities occurring within or outside 
those areas during the non-breeding season (October-April) must also 
ensure that the actions do not jeopardize the species by focusing on 
impacts to habitat.
    We published a final rule revising the definition of destruction or 
adverse modification on August 27, 2019 (84 FR 44976). Destruction or 
adverse modification means a direct or indirect alteration that 
appreciably diminishes the value of critical habitat as a whole for the 
conservation of a listed species. Such alterations may include, but are 
not limited to, those that alter the physical or biological features 
essential to the conservation of a species or that preclude or 
significantly delay development of such features.
    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 
Corps 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, authorized, or carried out 
by a Federal agency--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, and 
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 and/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 and/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 Service 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 set forth requirements for Federal 
agencies to reinitiate consultation on previously reviewed actions to 
address certain circumstances and where 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.

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 result in a direct or 
indirect alteration that appreciably diminishes the value of critical 
habitat for the conservation of the western yellow-billed cuckoo. Such 
alterations may include, but are not limited to, those that alter the 
physical or biological features essential to the conservation of these 
species or that preclude or significantly delay development of such 
features. As discussed above, the role of critical habitat is to 
support physical or biological features essential to the conservation 
of a listed 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 involving a Federal action that may violate section 
7(a)(2) of the Act by destroying or adversely modifying 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 western yellow-billed cuckoo. These activities 
include, but are not limited to:
    (1) Actions that would remove, thin, or destroy riparian western 
yellow-billed cuckoo habitat, without implementation of an effective 
riparian restoration plan that would result in the development of 
riparian vegetation of equal or better quality in abundance and extent. 
Such activities could include, but are not limited to, removing, 
thinning, or destroying riparian vegetation by mechanical (including 
controlled fire), chemical, or biological (poorly managed biocontrol 
agents) means. These activities could reduce the amount or extent of 
riparian habitat needed by western yellow-billed cuckoos for 
sheltering, feeding, breeding, and dispersing.
    (2) Actions that would appreciably diminish habitat value or 
quality through direct or indirect effects. 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. Such activities could 
include, but are not limited to: Spraying of pesticides that would 
reduce insect prey populations within or adjacent to riparian habitat; 
introduction of nonnative plants, animals, or insects; habitat 
degradation from recreational activities; and activities such as water 
diversions or impoundments that would result in diminished or altered 
riverflow regimes, groundwater extraction activities, dam construction 
and operation activities, or any other activity that negatively changes 
the frequency, magnitude, duration, timing, or abundance of surface 
flow. These activities have the potential to reduce or fragment the 
quality or amount or extent of riparian habitat needed by western 
yellow-billed

[[Page 20872]]

cuckoos for sheltering, feeding, breeding, and dispersing.
    As we understand the ongoing existing water management operations, 
they are not of the magnitude that would cause destruction or adverse 
modification of critical habitat. If discretion exists to modify these 
plans and if reinitiation of consultation on these plans becomes 
necessary, according to our regulations at 50 CFR 402.16, we would 
evaluate the effects according to the modification. If reinitiation of 
consultation becomes necessary, the environmental baseline, as defined 
in 50 CFR 402.02, would include the past and present impacts of all 
Federal, State, or private actions and other human activities in the 
action area, the anticipated impacts of all proposed Federal projects 
in the action area that have already undergone formal or early section 
7 consultation, and the impact of State or private actions which are 
contemporaneous with the consultation in process. To the extent 
agencies propose to modify their actions in a manner that does not 
appreciably diminish the value of the critical habitat as a whole for 
the western yellow-billed cuckoo, it is unlikely that these activities 
would meet the definition of destruction or adverse modification of 
critical habitat under the Act.
    (3) Actions that would permanently destroy or alter western yellow-
billed cuckoo 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 other things). 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 would result in alteration of western yellow-
billed cuckoo habitat from management of livestock or ungulates (for 
example, horses, burros). 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 
nongrowing season (for example, 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 
could reduce the volume and composition of riparian vegetation, prevent 
regeneration of riparian plant species, physically disturb nests, alter 
floodplain dynamics, alter watershed and soil characteristics, alter 
stream morphology, and facilitate the growth of flammable nonnative 
plant species.
    (5) Actions in relation to the Federal highway system, which could 
include, but are not limited to, new road construction and right-of-way 
designation. These activities could eliminate or reduce riparian 
habitat along river crossings necessary for reproduction, sheltering, 
or growth of the western yellow-billed cuckoo.
    (6) Actions that would involve funding and/or implementation of 
activities associated with cleaning up Superfund sites, erosion control 
activities, flood control activities, communication towers, solar 
arrays, and border walls or fences. These activities could eliminate or 
reduce habitat for the western yellow-billed cuckoo.
    (7) Actions that would affect waters of the United States under 
section 404 of the Clean Water Act. Such activities could include, but 
are not limited to, placement of fill into wetlands. These activities 
could eliminate or reduce the habitat necessary for the reproduction, 
feeding, or growth of the western yellow-billed cuckoo.
    Finally, we note that for any of the seven categories of actions 
outlined above, we and the relevant Federal agency may find that the 
agency's anticipated actions affecting critical habitat may be 
appropriate to consider programmatically in section 7 consultation. 
Programmatic consultations can be an efficient method for streamlining 
the consultation process, addressing an agency's multiple similar, 
frequently occurring, or routine actions expected to be implemented in 
a given geographic area. Programmatic section 7 consultation can also 
be conducted for an agency's proposed program, plan, policy, or 
regulation that provides a framework for future proposed actions. We 
are committed to responding to any agency's request for a programmatic 
consultation, when appropriate and subject to the approval of the 
Director, as a means to streamline the regulatory process and avoid 
time-consuming and inefficient multiple individual consultations.

Exemptions

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

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that 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 (INRMP) 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. There are no 
Department of Defense (DoD) lands with a completed INRMP within the 
final critical habitat designation.

Consideration of Impacts Under 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 the determination to exclude a particular area, 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.
    When identifying the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive due to the 
requirement that protection from destruction of adverse modification as 
a result of actions with a Federal nexus avoid destruction or adverse 
modification of the habitat; the educational benefits of increasing 
public awareness and educational benefits of the presence of western 
yellow-billed cuckoo; the recovery benefits of mapping the location of 
habitat that is essential habitat for recovery of the listed species, 
and importance of habitat protection; and any additional benefits that 
may result from a designation due to State or Federal laws that may 
apply to critical habitat, including protection from destruction or 
adverse modification of critical habitat.

[[Page 20873]]

    When identifying the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation or in the continuation, strengthening, or encouragement 
of partnerships. Additionally, continued implementation of an ongoing 
management plan or implementation of a new management plan that would 
not be implemented if critical habitat were designated that provides 
conservation that is equal to or more than the conservation that a 
critical habitat designation provides would reduce the benefits of 
including that specific area in the critical habitat designation.
    We evaluate the existence of a conservation plan when considering 
the benefits of inclusion and 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; whether 
the public participated in the development of the conservation plan; 
the degree of agency review and required determinations, including 
compliance with the National Environmental Policy Act (NEPA; 42 U.S.C. 
4231 et seq.), that were completed; 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. See our February 11, 2016, Policy on 
Exclusions for a complete discussion of our exclusion process (81 FR 
7226).
    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 the benefits 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 of the species. If exclusion of an area from critical 
habitat will result in extinction, we will not exclude it from the 
designation.

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. In order to consider economic impacts, we prepared 
an incremental effects memorandum (IEM) and screening analysis which, 
together with our narrative and interpretation of effects we consider 
our draft economic analysis of the critical habitat designation and 
related factors (IEc 2020, entire). We made the analysis, dated 
February 5, 2020, available for public review from February 27, 2020, 
through April 27, 2020. The DEA addressed probable economic impacts of 
critical habitat designation for the western yellow-billed cuckoo. 
Following the close of the comment period, we reviewed and evaluated 
all information submitted during the comment period that may pertain to 
our consideration of the probable incremental economic impacts of this 
critical habitat designation. Additional information relevant to the 
probable incremental economic impacts of critical habitat designation 
for the western yellow-billed cuckoo is summarized below and available 
in the screening analysis for the western yellow-billed cuckoo (IEc 
2020, entire), available at http://www.regulations.gov.
    In our screening memo, which was based on our 2013 and 2019 review 
of potential economic impacts and comments received on our analysis 
established that the primary expected impact from the critical habitat 
designation would be the additional analysis to consider adverse 
modification of critical habitat (and not just jeopardy). While 
additional analysis for critical habitat in a consultation will require 
time and resources by both the Federal action agency and the Service, 
in most circumstances, these additional analyses would be predominantly 
administrative in nature and would not incur significant costs. Our 
screening analysis also includes discussion of other incremental 
impacts that may be triggered by this action that in turn may result in 
costs or benefits--such as, additional permitting requirements or 
changes in public perception. However, those impacts are uncertain, and 
some of the data necessary for a full assessment of those costs and 
benefits are lacking. We recognize that changes in land value are 
possible. But because the magnitude and timing are uncertain, the best 
assessment of these possible impacts is to conduct a bounding analysis 
of the total possible land value costs and benefits of developable land 
within the critical habitat designation.
    The critical habitat designation for the western yellow-billed 
cuckoo includes 63 units in 7 western States: Arizona, California, 
Colorado, Idaho, New Mexico, Texas, and Utah. A total of 298,845 ac 
(120,939 ha) is being designated after excluding or removing 194,820 ac 
(78,840 ha). Approximately 35 percent of the proposed total acreage is 
Federal land, 11 percent is State land, and 54 percent is privately 
owned or owned by local government entities. No Tribal lands are being 
designated. All critical habitat units are considered to be occupied.
    The entities most likely to incur incremental costs are parties to 
section 7 consultations, including Federal action agencies and, in some 
cases, third parties, most frequently State agencies or municipalities. 
Activities we expect would be subject to consultations that may involve 
private entities as third parties are residential and commercial 
development that may occur on Tribal or private lands. However, all 
Tribal lands have been excluded and based on coordination efforts State 
and local agencies, the cost to private entities within these sectors 
is expected to be relatively minor (administrative costs of less than 
$5,200 per formal consultation effort) and, therefore, would not be 
significant.
    The probable incremental economic impacts of the western yellow-
billed cuckoo critical habitat designation are expected to be limited 
to additional administrative effort, as well as minor costs of 
conservation efforts resulting from a small number of future section 7 
consultations. This low level of impacts is anticipated because, given 
that the critical habitat is occupied by the species, actions that may 
adversely modify the critical habitat would also likely jeopardize the 
continued existence of the species; as a result, other than 
administrative costs, incremental economic impacts of critical habitat 
designation over and above impacts from consulting for jeopardy are 
unlikely. At approximately $5,200 or less per formal consultation, in 
order to reach the threshold of $100 million of incremental 
administrative impacts in a single year, Federal agencies would need to 
undertake more than 20,000 formal consultations in a single year. In 
our 2020 economic screening memo, we identified 16 formal consultations 
initiated for the western yellow-billed cuckoo since listing. The 
resulting incremental economic burden is estimated to be less than 
$74,000 in a given year (IEc 2019, entire). This estimate calculated 
the administrative cost (staff time) the Federal agency would need to 
expend on its analysis of adverse modification of critical habitat for 
each consultation. As discussed above, we recognize that changes in 
land value are possible. Because the magnitude and timing are 
uncertain, we conducted a bounding analysis of the per-acre land values 
for undeveloped properties within the

[[Page 20874]]

designation that may be subject to development pressure in the 
foreseeable future. Public perception of the effect of critical habitat 
may diminish land values by some percent of these total values. Data 
limitations prevent us from estimating the size of this percent 
reduction. However, any diminishment in property value cannot exceed 
the total value of the property. The bounding analysis indicates that 
approximately 287 acres of developable land are located within census 
tracts overlapping the proposed designation with population densities 
greater than 1,000 people per square mile. If public perception causes 
the value of critical habitat acres to be diminished, these acres are 
those most likely to be affected. Due to existing data limitations 
regarding the probability that such effects will occur, and the likely 
degree to which property values will be incrementally affected by this 
designation (above and beyond potential perceptional effects resulting 
from the presence of the cuckoo and the flycatcher, as well as 
flycatcher critical habitat), we are unable to estimate the magnitude 
of perception-related costs resulting from this designation. However, 
the cost cannot exceed the total value of affected properties. Our 
bounding analysis estimates the total value of developable land within 
the proposed critical habitat to be $20.3 million. Therefore, we have 
concluded that the future probable incremental economic impacts based 
on the value of developable land in the vicinity of the proposed 
designation, the combined total of section 7 and other possible costs 
and benefits are unlikely to exceed $100 million in any single year, 
and impacts to any specific geographic area or sector as a result of 
this critical habitat designation are also unlikely.

Exclusions

Exclusions Based on Economic Impacts

    The Service considered the economic impacts of the critical habitat 
designation as described above. Based on this information, the 
Secretary has determined not to exercise his discretion to exclude any 
areas from this designation of critical habitat for the western yellow-
billed cuckoo based on economic impacts.

Exclusions Based on Impacts on National Security and Homeland Security

    Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or 
areas that pose potential national-security concerns (e.g., a DoD 
installation that is in the process of revising its INRMP for a newly 
listed species or a species previously not covered). If a particular 
area is not covered under section 4(a)(3)(B)(i), national-security or 
homeland-security concerns are not a factor in the process of 
determining what areas meet the definition of ``critical habitat.'' 
Nevertheless, when designating critical habitat under section 4(b)(2), 
the Service must consider impacts on national security, including 
homeland security, on lands or areas not covered by section 
4(a)(3)(B)(i). Accordingly, the Policy on Exclusions makes clear that 
we will always consider for exclusion from the designation areas for 
which DoD, Department of Homeland Security (DHS), or another Federal 
agency has requested exclusion based on an assertion of national-
security or homeland-security concerns (see Policy on Exclusions (81 FR 
7226)).
    We cannot, however, automatically exclude requested areas. First, 
when we adopted the policy on exclusion, we explained that, when DoD, 
DHS, or another Federal agency requests exclusion from critical habitat 
on the basis of national-security or homeland-security impacts, it must 
provide a reasonably specific justification of an incremental impact on 
national security that would result from the designation of that 
specific area as critical habitat. That justification could include 
demonstration of probable impacts, or a delay in training or facility 
construction, as a result of compliance with section 7(a)(2) of the 
Act. If the agency requesting the exclusion does not provide us with a 
reasonably specific justification, we will contact the agency to 
recommend that it provide a specific justification or clarification of 
its concerns relative to the probable incremental impact that could 
result from the designation.
    Second, even if the agency provides a reasonably specific 
justification, the result is not that we automatically exclude the 
area, but rather that we undertake an exclusion analysis to determine 
whether or not to exclude the area. In undertaking that exclusion 
analysis, we will defer to the expert judgment and give great weight to 
national-security and homeland-security concerns of DoD, DHS, or 
another Federal agency as outlined in our policy (81 FR 7226).
Department of Army--Yuma Proving Grounds and Department of Air Force--
Luke Air Force Base
    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the DoD where a national-security impact 
might exist. We received comments from the Department of the Army and 
Department of the Air Force requesting exclusion of areas used by the 
Army and Air Force for training operations based on national security 
or other military operations. The comments were from the Yuma Proving 
Grounds (Department of the Army 2014a, entire) and the Luke Air Force 
Base (Department of the Air Force 2014, entire) concerning airspace 
above critical habitat; however, the actions described by the two 
installations (overflight of critical habitat areas) do not directly or 
indirectly affect the physical or biological features of critical 
habitat for the western yellow-billed cuckoo; thus, they would not 
require consideration of adverse modification of the critical habitat. 
Consequently, national security activities carried out by the Army 
operations at Fort Yuma or operations by Luke Air Force Base will not 
be disrupted as a result of designation of critical habitat. Therefore, 
we are including these areas in our critical habitat designation.
Department of Army--Fort Huachuca
    We also received comments from the U.S. Army installation at Fort 
Huachuca requesting that areas outside the installation in Unit 16 (AZ-
14) that includes the San Pedro Riparian National Conservation Area 
(SPRNCA) be excluded from the final designation (U.S. Department of the 
Army 2014b, entire). Unit 16 is managed by the BLM and composed of 
Federal, State, and private lands and not owned by the DoD or part of 
the lands managed under the Fort Huachuca's INRMP or used for training. 
The Army's rationale for the requested exclusion was that any 
additional restrictions to ground water pumping and water usage could 
affect their ability to increase staffing when needed or carry out 
missions critical to national security. The Army also stated that 
designation of lands within the SPRNCA would increase its regulatory 
burden and disrupt its operations related to national security but 
provided no specific examples or information supporting or explaining 
these claims either through its comments or during our meetings with 
them after the revised proposed rule was issued. The Army pointed to 
its continued land stewardship actions and its commitment to protecting 
natural resources on the base.
    As stated above, the lands within Unit 16 (AZ-14) are primarily 
owned and managed by BLM. Declining base flow and habitat loss in the 
San Pedro River due anthropogenic factors, drought, and climate change 
has long been a concern

[[Page 20875]]

to landowners and communities in and near this unit. In addition, the 
November 2013 Fort Huachuca Revised Biological Assessment (BA) on its 
operations, titled Programmatic Biological Assessment for Ongoing and 
Future Military Operations and Activities at Fort Huachuca, Arizona, 
(U.S. Department of the Army 2013, p. 5-28), states that ``Fort-
attributable groundwater use is unlikely to affect the yellow-billed 
cuckoo (proposed for listing at the time) or its habitat where the 
species is known to occur in the SPRNCA, Babocomari Cienega, or the 
lower San Pedro River. . . .'' The Fort subsequently states that a 
modeled decline in baseflow to the lower Babocomari River downstream 
could exist by 2030 (U.S. Department of the Army 2013, p. 5-28). The BA 
concludes there will be no adverse effect on western yellow-billed 
cuckoo or its habitat from Fort Huachuca's operational actions or 
ground water pumping. Within the Service's subsequent 2014 biological 
and conference opinion under section 7 of the Act, we issued a 
conference report concluding that Fort Huachuca's operational 
activities and groundwater pumping as related to the SPRNCA, Babocomari 
Cienega, the lower San Pedro River, or the lower Babocomari River were 
not likely to adversely affect western yellow-billed cuckoo (NLAA) 
(Service 2014c, pp. 300-306).
    However, although the Fort's water conservation measures are 
intended to avoid, minimize, and/or offset the effects of water use to 
the Upper San Pedro River Unit, they also do not constitute a western 
yellow-billed cuckoo conservation plan or prevent water use or habitat 
loss by other entities affecting this unit. The Fort's water 
conservation actions are not sufficient to protect the San Pedro River 
critical habitat from ongoing and future actions that threaten to 
reduce flow and western yellow-billed cuckoo suitable habitat in this 
large unit. The Fort does not manage or control lands covered by this 
unit and ground water use is only one component of western yellow-
billed cuckoo PBFs. The Service has engaged in several Section 7 
consultations on proposed actions that may affect western yellow-billed 
cuckoo habitat but for which the Fort has no management authority 
including herbicide treatment, fire management, grazing, exotic plant 
control, mesquite (breeding habitat) removal, recreation, off-road 
vehicle use, development, and other proposed actions that may result in 
loss of water or suitable habitat. We will continue to engage in future 
consultations that may affect habitat in this active unit. Given that 
the Fort's groundwater use has been determined to not adversely affect 
western yellow-billed cuckoos or their habitat, it is unlikely that 
there would be future restrictions on the Fort's groundwater use 
resulting from the designation of critical habitat and accordingly, we 
are not considering the area for exclusion from this final rule due to 
national security. Designating critical habitat may actually help 
retain base flow and western yellow-billed cuckoo habitat, through 
section 7 consultation with other entities affecting this unit.

Unit 1 (CA-AZ 1), Unit 44 (AZ-32), Unit 45 (AZ-33), Unit 52 (AZ-40), 
Unit 20 (AZ-18), Unit 61 (AZ-49), Unit 16 (AZ-14), and Unit 21 (AZ-
19)--U.S. Customs and Border Protection (CBP)/Department of Homeland 
Security (DHS)--U.S./Mexico Border Lands

    We received a request from the U.S. Customs and Border Protection 
(CBP) under the Department of Homeland Security (DHS) that the 
Roosevelt Reservation portion of critical habitat along the U.S./Mexico 
border be considered for exclusion under section 4(b)(2) of the Act for 
national security reasons.
    The Roosevelt Reservation is a 60-ft (18 m) wide strip of land 
owned by the Federal Government along the United States side of the 
U.S./Mexico border in California, Arizona, and New Mexico (DHS 2020, 
entire). No critical habitat was proposed along the border in New 
Mexico, while the border area in Texas is not part of the Roosevelt 
Reservation (Proclamation 758 1907, entire). DHS and CBP requested an 
exclusion for portions of the Roosevelt Reservation located in Yuma, 
Pima, Santa Cruz, and Cochise counties in Arizona. Their exclusion 
request identified Unit 1 (CA-AZ 1), Unit 44 (AZ-32), Unit 45 (AZ-33), 
Unit 52 (AZ-40), Unit 20 (AZ-18), Unit 61 (AZ-49), Unit 16 (AZ-14), and 
Unit 21 (AZ-19). The area being excluded totals 113 ac (46 km). All the 
units are considered to have been occupied at the time of listing and 
are currently occupied. Unit 1 (CA-AZ 1) has been excluded due to 
management from the LCR MSCP (see Exclusions Private or Other Non-
Federal Conservation Plans Related to Permits Under Section 10 of the 
Act). Each of these units extend for miles north of the border beyond 
the 60-ft (18 m) wide Roosevelt Reservation (see Unit Descriptions). 
The following analysis addresses only the 60-ft (18-m) wide Roosevelt 
Reservation along the border and not additional portions of the units.
    The U.S. Border Patrol (USBP), a law enforcement component of CBP, 
uses the Roosevelt Reservation for border security operations. The 
mission of the CBP is ``To safeguard America's borders thereby 
protecting the public from dangerous people and materials while 
enhancing the Nation's global economic competitiveness by enabling 
legitimate trade and travel.'' The Roosevelt Reservation contains 
border security related infrastructure consisting of border barrier, 
lighting, a patrol road, and cleared vegetation of the 60-ft (18-m) 
wide reservation. USBP conducts routine patrols and law enforcement 
activities between the land ports of entries such as intervention of 
drug smuggling, human trafficking, and tracking of illegal immigrant 
foot traffic. Border enforcement activities can occur along the road 
bordering the barrier (within the 60-ft (18-m) Roosevelt Reservation) 
and outside of the Roosevelt Reservation, as needed for enforcement. 
The Roosevelt Reservation has historically been used for border 
enforcement actions in Arizona for decades and includes an existing 
patrol road in most areas. New border barrier is being constructed in 
portions of the Roosevelt Reservation in Arizona where there has 
historically not been barrier. These new areas of border barrier 
include the clearing of vegetation within the 60-ft (18-m) wide 
Roosevelt Reservation, construction of a patrol road paralleling the 
barrier, lighting, and detection technology. A significant amount of 
water, which often flows through these drainages important to the 
western yellow-billed cuckoo, is being extracted from local sources 
along the border to mix with cement in border wall construction. Upon 
completion of construction, these areas of new barrier along with 
existing areas of barrier will be used for border enforcement actions 
by USBP for the foreseeable future. DHS states that they will continue 
to maintain and clear vegetation within the Roosevelt Reservation to 
ensure a safe operating environment for agents patrolling and enforcing 
border laws on the border. These border-security activities are not 
compatible with riparian habitat. As a result, since designating the 
60-ft (18-m) wide Roosevelt Reservation as critical habitat for the 
western yellow-billed cuckoo would interfere with on-going border 
security operations, DHS states that the 60-ft (18-m) wide Roosevelt 
Reservation should be excluded because of national security reasons.
    DHS and CBP currently have the authority to conduct work within the 
60-ft (18-m) Roosevelt Reservation to

[[Page 20876]]

secure the border under existing waivers of environmental laws, 
including the ESA. These waivers cover the construction and maintenance 
of discrete border infrastructure projects, as issued by the Secretary 
of the Interior. Congress directed DHS to achieve and maintain 
operational control of the U.S. Mexico border (Secure Fence Act of 
2006, Pub. L. 109-367, section 2, 120 Stat. 2638 (Oct. 26, 2006) (8 
U.S.C. 1701 note)). Congress further provided DHS with a number of 
authorities to carry out DHS's border security mission (85 FR 9794, 
February 20, 2020). One of these authorities, under section 102 of the 
Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 
1996, as amended, authorized DHS to waive laws where necessary to 
ensure the expeditious construction of border infrastructure in areas 
of high illegal entry (IIRIRA 2019). Per section 102 of IIRIRA, the 
Secretary of Homeland Security has waived certain laws, regulations, 
and other legal requirements in order to ensure the expeditious 
construction of barriers and roads and achieve operational control of 
the border. As such, review of specific federally funded projects 
through the section 7 consultation process under the Endangered Species 
Act is not required, although DHS coordinates with the Service 
concerning actions along the 60-ft (18-m) Roosevelt Reservation, where 
applicable.
    Currently, CBP is authorized to access the project area; remove 
vegetation; extract and use water; and create, maintain, and use roads, 
barrier fence, drainage, and lighting, as well as conduct operations 
involved with homeland security. Actions pertaining to the current 
building, maintenance, and operation of the border infrastructure are 
considered to have negative effects to western yellow-billed cuckoo 
individuals and habitat, based on the western yellow-billed cuckoo's 
behaviors and biological needs. Some of the actions CBP takes within 
the Roosevelt Reservation may also affect western yellow-billed cuckoos 
immediately outside the Roosevelt Reservation, and include actions such 
as but not limited to: Drainage design, gate placement and operations, 
and lighting footprint.

Benefits of Inclusion--U.S./Mexico Border Lands

    An important benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners and 
the public regarding the potential conservation value of an area, and 
it may help focus management and conservation efforts on areas of high 
value for certain species. Any information about the western yellow-
billed cuckoo that reaches a wide audience, including parties engaged 
in conservation activities, is valuable and would continue to encourage 
collaboration between DHS, CBP, and USBP and the Service.
    The border area is important because it spans riparian areas and 
associated drainages that run north-south between Mexico and the U.S. 
These corridors are migratory routes of not only western yellow-billed 
cuckoos, but also many other migratory birds. Including the Roosevelt 
Reservation provides opportunities for education and public awareness 
concerning migratory birds' needs, particularly those of the western 
yellow-billed cuckoo and potentially encourages future restoration and 
minimization of adverse effects in areas designated. This may lead to 
retaining existing trees, allowing for successional development of 
future riparian habitat, and provide for naturally functioning 
drainages to maintain or restore the environmental qualities of the 
sites. Retaining hydrological processes that allow for drainages to 
fully function naturally will sustain riparian habitat upstream and 
downstream of the Roosevelt Reservation. Inclusion of these border 
areas delineates geographically important habitat for this species that 
may otherwise remain unknown by agencies and organizations working 
along the border.
    In addition, inclusion of western yellow-billed cuckoo habitat 
within the critical habitat designation would be consistent with other 
designations of critical habitat for other listed species along the 
border without exclusions. The border includes designated critical 
habitat for the jaguar (Panthera onca), Yaqui chub (Gila purpurea), 
beautiful shiner (Cyprinella formosa), Yaqui catfish (Ictalurus 
pricei), Sonoyta mud turtle (Kinosternon sonoriense longifemorale) and 
Sonora chub (Gila ditaenia).
    However, because of the waiver discussed above, which waives ESA 
requirements, the benefits of including this area within the 
designation are relatively low, given that section 7 consultations are 
unlikely to occur.

Benefits of Exclusion--U.S./Mexico Border Lands

    The benefits of excluding the 60-ft (18-m) Roosevelt Reservation 
area are significant. CBP has been tasked with enforcing national 
security along border areas of the United States. The Roosevelt 
Reservation and infrastructure within the area is a key component in 
assisting CBP to conduct its normal operations and fulfilling their 
national security mission along the southern border of the United 
States. CBP has identified the following activities and infrastructure 
occurring within the Roosevelt Reservation: Barrier fencing, lighting 
systems, enforcement zones, patrol roads, cleared vegetation, vehicular 
patrol operations, ongoing border barrier construction and maintenance, 
and illegal immigrant foot traffic and trespass. The designation of the 
Roosevelt Reservation may reduce CBP's availability of unencumbered 
space to support its operations. By excluding the 60-ft (18-m) 
Roosevelt Reservation the CBP would be able to fulfill its mission of 
securing the border and conduct necessary border patrol operations as 
well as construct any necessary border security infrastructure.
    Excluding the Roosevelt Reservation from western yellow-billed 
cuckoo critical habitat will enable CBP to continue actions without a 
need to consult on the possible effects of adverse modification to 
critical habitat. CBP states that excluding critical habitat will also 
reduce the chances that they will need to obtain additional waivers 
that they might not otherwise need for border infrastructure projects.
    By excluding the Roosevelt Reservation, we will maintain our 
working relationship with the DHS/CBP. The Department of the Interior 
(DOI), Department of Agriculture (USDA), and DHS entered into a 
Memorandum of Understanding (MOU) in 2006 (DHS-DOI-USDA 2006, entire). 
The MOU is intended to provide consistent goals, principles, and 
guidance related to DHS, DOI, and USDA working together in fulfilling 
their mandated responsibilities. The MOU sets goals for communication, 
cooperation, and resolving conflicts while allowing for border security 
operations such as: Law enforcement operations; tactical infrastructure 
installation; utilization of roads; and minimization and/or prevention 
of significant impact on or impairment of natural and cultural 
resources, including those protected under the Act.
    Excluding the Roosevelt Reservation from the designation of 
critical habitat so that CBP border activities can continue could also 
have several positive effects to western yellow-billed cuckoos. For 
example, border infrastructure and patrolling could help prevent 
unauthorized trespass and resource destruction to areas adjacent to the 
border that may impact western yellow-billed cuckoo habitat.

[[Page 20877]]

Benefits of Exclusion Outweigh Benefits of Inclusion--U.S./Mexico 
Border Lands

    The benefits of including lands in a critical habitat designation 
include educating landowners, agencies, tribes, and the public 
regarding the potential conservation value of an area, as well as 
potentially helping to focus conservation efforts on areas of high 
value for certain species and maintaining consistency with other areas 
being designated for other listed species within the Roosevelt 
Reservation. Because DHS and CBP have obtained a waiver of ESA 
requirements, the benefits of including the area as critical habitat is 
minimized. Because the Roosevelt Reservation only extends 60 ft (18 m) 
along the border, the amount of area associated with the exclusion is 
small and the overwhelming majority of critical habitat that is being 
designated adjacent to the Roosevelt Reservation remains in the final 
designation, allowing for the educational benefits to remain. As a 
result, the educational benefits are small.
    The benefits of exclusion of the Roosevelt Reservation are 
significant. We base this on several reasons. Firstly, the exclusion 
will allow DHS to conduct its mission of securing the border unimpaired 
from the designation of critical habitat for the western yellow-billed 
cuckoo. Secondly, the exclusion will further our partnership with DHS 
and allow for coordination of both the Service's and DHS's 
responsibilities. We view this as a significant benefit of exclusion. 
Thirdly, exclusion would allow for CBP to continue conducting border 
infrastructure and patrolling thereby helping to prevent unauthorized 
trespass and resource destruction to areas adjacent to the Roosevelt 
Reservation that may affect western yellow-billed cuckoo habitat. We 
reviewed and evaluated the benefits of inclusion and benefits of 
exclusion for the 60-ft (18-m) Roosevelt Reservation for the DHS to 
conduct its national security operations and have determined that the 
benefits of excluding outweigh the benefits of including the areas.

Exclusion Will Not Result in Extinction of the Species--U.S./Mexico 
Border Lands

    Because of the 2006 MOU, CBP has a track record of communicating 
with the Service and of remaining committed to seeking solutions to 
reduce harm along the border to listed species and their habitat, 
including the western yellow-billed cuckoo. In addition, if the 
operation waivers are discontinued, DHS and CBP would be required to 
consult with the Service under section 7 of the Act. These 
consultations would need to consider the effects on the species and its 
habitat, and could be more numerous, complex, or costly if the areas 
are included within the critical habitat designation. We have 
determined that exclusion of the 60-ft (18-m) Roosevelt Reservation 
lands from the critical habitat designation will not result in the 
extinction of the western yellow-billed cuckoo. Accordingly, we have 
determined that areas totaling 12 ac (5 ha) within the (60-ft (18-m)) 
Roosevelt Reservation in Unit 44 (AZ-32) (0.6 ac (0.24 ha)), Unit 45 
(AZ-33) (0.26 ac (0.1 ha)), Unit 52 (AZ-40) (0.67 ac (0.27 ha)), Unit 
20 (AZ-18) (4 ac (2 ha)), Unit 61 (AZ-49) (1 ac (0.4 ha)), Unit 16 (AZ-
14) (0.6 ac (0.24 ha)), and Unit 21 (AZ-19) (4 ac (2 ha)), are excluded 
under subsection 4(b)(2) of the Act because the benefits of exclusion 
outweigh the benefits of inclusion and will not cause the extinction of 
the species.

Consideration of Other Relevant Impacts

    When identifying the benefits of inclusion for an area, we consider 
other relevant impacts, such as the additional regulatory benefits that 
the area would receive due to the protection from destruction or 
adverse modification as a result of actions with a Federal nexus, the 
educational benefits of mapping essential 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. The 
western yellow-billed cuckoo migrates and is present in the U.S. mainly 
during its breeding season (generally May through September). 
Regardless of the time of year, proposed actions with a Federal nexus 
that may remove or reduce the quality or quantity of critical habitat 
must undergo Section 7 consultation for an adverse modification 
analysis. Similarly, the listing of the western yellow-billed cuckoo as 
a threatened species ensures that, regardless of the time of year, 
consultation under the jeopardy standard in either section 7 or section 
10 of the Act would also be required in areas where members of the 
species are known to occur. When considering the benefits of exclusion, 
we consider, among other things, whether exclusion of a specific area 
is likely to result in conservation, or in the continuation, 
strengthening, or encouragement of partnerships.
    In the case of western yellow-billed cuckoo, the benefits of 
critical habitat include public awareness of the presence of western 
yellow-billed cuckoo and the importance of habitat protection, and, 
where a Federal nexus exists, increased habitat protection for western 
yellow-billed cuckoo due to protection from destruction or adverse 
modification of critical habitat. Additionally, continued 
implementation of an ongoing management plan that provides equal to or 
more conservation than a critical habitat designation would reduce the 
benefits of including that specific area in the critical habitat 
designation.
    We evaluate the existence of a conservation plan when considering 
the benefits of inclusion. We consider a variety of factors, including, 
but not limited to, the degree to which the record of the plan supports 
a conclusion that a critical habitat designation would impair the 
realization of benefits expected from the plan, agreement, or 
partnership; 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 (see Policy on Exclusions (81 FR 7226 at 7247)).
    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 of the species. If exclusion of an area from critical 
habitat will result in extinction, we will not exclude it from the 
designation.

Exclusions Based on Other Relevant Impacts

    Based on the information provided by entities seeking exclusion, 
any additional public comments we received, and the best scientific 
data available, we evaluated whether certain lands in the critical 
habitat were appropriate for exclusion from this final designation 
under section 4(b)(2) of the Act. If our analysis indicated that the 
benefits of excluding lands from the final designation outweighed the 
benefits of designating those lands as critical habitat, then we 
identified those areas for the Secretary to exercise his

[[Page 20878]]

discretion to exclude those lands from the final designation, unless 
exclusion would result in extinction.
    In considering whether to exclude areas under section 4(b)(2) of 
the Act, we consider a number of factors including whether there are 
permitted conservation plans covering the species in the area such as 
HCPs, safe harbor agreements (SHAs), or candidate conservation 
agreements with assurances (CCAAs); whether there are other 
conservation agreements and partnerships that would be encouraged by 
designation of, or exclusion from, critical habitat; whether there are 
tribal conservation plans and partnerships or whether inclusion or 
exclusion of specific areas could affect the government-to-government 
relationship of the United States with tribal entities; and whether 
there are social impacts that might occur because of the designation.
    In the paragraphs below, we provide a detailed balancing analysis 
of the areas being excluded under section 4(b)(2) of the Act. Table 3 
below provides approximate areas (ac, ha) of lands that meet the 
definition of critical habitat but that we are excluding from this 
final critical habitat rule under section 4(B)(2) of the Act.

                                  Table 3--Areas Excluded by Critical Habitat Unit for the Western Yellow-Billed Cuckoo
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                  Proposed critical        Area excluded  (ac     Final critical habitat
                    Unit                                 Unit name               habitat,  (ac (ha))             (ha))                  (ac (ha))
--------------------------------------------------------------------------------------------------------------------------------------------------------
1 CA/AZ-1...................................  Colorado River 1...............          82,138 (33,240)          82,138 (33,240)                        0
2 CA/AZ-2...................................  Colorado River 2...............           23,589 (9,546)           23,589 (9,546)                        0
3 AZ-1......................................  Bill Williams River............            3,389 (1,371)            3,389 (1,371)                        0
4 AZ-2......................................  Alamo Lake.....................            2,793 (1,130)            2,793 (1,130)                        0
7 AZ-5......................................  Upper Verde River..............            6,047 (2,447)                673 (272)            5,188 (2,100)
9 AZ-7......................................  Beaver Creek...................              2,082 (842)                   1 (<1)              2,081 (842)
10 AZ-8.....................................  L. Verde R./West Clear Ck......              2,178 (882)                  44 (18)              2,134 (864)
11 AZ-9A....................................  Horseshoe Dam..................            2,743 (1,110)                  76 (31)            2,667 (1,079)
11 AZ-9B....................................  Horseshoe Dam..................              1,231 (489)                321 (130)                782 (316)
12 AZ-10....................................  Tonto Creek....................            3,669 (1,485)                489 (198)            3,181 (1,287)
13 AZ-11....................................  Pinal Creek....................                419 (169)                380 (154)                        0
16 AZ-14....................................  Upper San Pedro River..........          31,060 (12,569)               0.6 (0.24)          31,059 (12,569)
17 AZ-15....................................  Lower San Pedro/Gila R.........           23,400 (9,470)                445 (184)           22,397 (9,064)
20 AZ-18....................................  Santa Cruz River...............            9,543 (3,862)                    4 (2)            9,538 (3,860)
21 AZ-19....................................  Black Draw.....................              1,599 (647)                    4 (2)              1,595 (646)
22 AZ-20....................................  Gila River 1...................           20,724 (8,392)           10,184 (4,121)           10,540 (4,266)
23 AZ-21....................................  Salt River.....................            2,590 (1,048)              2,009 (813)                581 (235)
27 AZ-25....................................  Aravaipa Creek.................            3,329 (1,347)                392 (159)            2,937 (1,189)
28 AZ-26....................................  Gila River 2...................            8,588 (3,195)              1,467 (594)            5,836 (2,362)
31 AZ-29....................................  Big Sandy......................           20,179 (8,166)                500 (202)           15,231 (6,164)
33 NM-2.....................................  Gila River.....................            4,177 (1,690)              1,142 (462)            3,036 (1,228)
35 NM-4.....................................  Upper Rio Grande 1.............              1,830 (741)              1,312 (531)                518 (210)
36 NM-5.....................................  Upper Rio Grande 2.............              1,173 (475)              1,173 (475)                        0
37 NM-6A....................................  Middle Rio Grande..............            7,238 (2,929)            7,238 (2,929)                        0
37 NM-6B....................................  Middle Rio Grande..............          61,343 (24,825)           11,367 (4,600)          46,595 (18,856)
39 NM-8A....................................  Caballo Delta North............                 190 (77)                 190 (76)                        0
39 NM-8B....................................  Caballo Delta South............                 155 (63)                 155 (63)                        0
40 NM-9.....................................  Animas.........................                608 (246)                608 (246)                        0
41 NM-10....................................  Selden Cyn./Radium Sprs........                 237 (96)                 237 (96)                        0
44 AZ-32....................................  California Gulch...............                558 (226)               0.6 (0.24)                558 (226)
45 AZ-33....................................  Sycamore Canyon................                601 (243)              0.26 (0.10)                601 (243)
52 AZ-40....................................  Pena Blanca Canyon.............                484 (196)              0.67 (0.27)                483 (195)
61 AZ-49....................................  Washington Gulch...............                587 (237)                  1 (0.4)                585 (237)
64 CA-2.....................................  South Fork Kern R. Valley......            2,640 (1,068)                261 (106)              2,379 (963)
65 ID-1.....................................  Snake River 1..................            9,655 (3,907)            4,023 (1,628)            5,623 (2,276)
68 CO-1.....................................  Colorado River.................            4,002 (1,620)                866 (350)            3,137 (1,269)
70 UT-1.....................................  Green River 1..................          28,381 (11,486)           15,017 (6,077)           13,273 (5,371)
                                                                              --------------------------------------------------------------------------
    Total...................................  ...............................  .......................         172,490 (69,808)  .......................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Areas may not add due to rounding.

Private or Other Non-Federal Conservation Plans or Agreements and 
Partnerships, in General

    We sometimes exclude specific areas from critical habitat 
designations based in part on the existence of private or other non-
Federal conservation plans or agreements and their attendant 
partnerships. A conservation plan or agreement describes actions that 
are designed to provide for the conservation needs of a species and its 
habitat, and may include actions to reduce or mitigate negative effects 
on the species caused by activities on or adjacent to the area covered 
by the plan. Conservation plans or agreements can be developed by 
private entities with no Service involvement, or in partnership with 
the Service.
    We evaluate a variety of factors to determine how the benefits of 
any exclusion and the benefits of inclusion are affected by the 
existence of private or other non-Federal conservation plans or 
agreements and their attendant partnerships when we undertake a 
discretionary section 4(b)(2) exclusion analysis. A non-exhaustive list 
of factors that we will consider for non-permitted plans or agreements 
is shown below. These factors are not required elements of plans or 
agreements, and some elements may not apply to a particular plan or 
agreement.
    (i) The degree to which the plan or agreement provides for the 
conservation of the species or the essential physical

[[Page 20879]]

or biological features (if present) for the species.
    (ii) Whether there is a reasonable expectation that the 
conservation management strategies and actions contained in a 
management plan or agreement will be implemented.
    (iii) The demonstrated implementation and success of the chosen 
conservation measures.
    (iv) The degree to which the record of the plan supports a 
conclusion that a critical habitat designation would impair the 
realization of benefits expected from the plan, agreement, or 
partnership.
    (v) The extent of public participation in the development of the 
conservation plan.
    (vi) The degree to which there has been agency review and required 
determinations (e.g., State regulatory requirements), as necessary and 
appropriate.
    (vii) Whether National Environmental Policy Act (NEPA; 42 U.S.C. 
4321 et seq.) compliance was required.
    (viii) Whether the plan or agreement contains a monitoring program 
and adaptive management to ensure that the conservation measures are 
effective and can be modified in the future in response to new 
information.
Unit 4 (AZ-2) and Portions of Unit 31 (AZ-29)--Alamo Lake Wildlife Area 
Management Plan
    In the revised proposed rule, we identified approximately 2,793 ac 
(1,130 ha)) as critical habitat in Alamo Lake Unit 4 (AZ-2) and 500 ac 
(202 ha) in a portion of the Big Sandy River Unit 31 (AZ-29). 
Approximately 1,840 ac (745 ha) is in Federal ownership, and 953 ac 
(386 ha) is in other unclassified ownership but most likely Arizona 
State Park lands. The vast majority of the critical habitat is within 
the Alamo Lake State Wildlife Area, which is made up of Corps and State 
Park Lands. Small upland areas adjacent to the wildlife area belong to 
BLM. The critical habitat area is a continuous 6-mi (10-km)-long 
segment of the Santa Maria River and a 3-mi (5-km)-long continuous 
segment of the Big Sandy River that feeds into the Santa Maria River 
above Alamo Lake State Park in Mohave and La Paz Counties, Arizona. We 
are excluding the entire Alamo Lake area (Alamo Lake (Unit 4, AZ-2: 
2,793 ac (1,130 ha)) and portions of the Big Sandy River (Unit 31, AZ-
29: 500 ac (202 ha) within the Alamo Lake State Wildlife Area from the 
final designation of western yellow-billed cuckoo critical habitat 
under section 4(b)(2) of the Act. The BLM lands adjacent to the 
wildlife area were removed from the designation due to their small size 
and being made up of upland habitat not containing the PBFs.
    The Alamo Lake Wildlife Area (AWA) 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 (AGFD-ASP) 1997). A lease agreement 
between the Arizona Game and Fish Department Commission and the Corps 
was signed in 1970, establishing the AWA for fish and wildlife 
conservation and management purposes (AGFD-ASP 1997). The present lease 
area encompasses approximately 22,586 ac (9,140 ha).
    Public input was solicited and addressed in development of the AWA 
Management Plan and the NEPA review process (AGFD-ASP 1997). The 
corresponding AWA Property Operational Management Plan addressing the 
operations of the property, together with the budget, is updated as 
needed to reflect the changes in operational management (AGFD 2012).
    We identified western yellow-billed cuckoo critical habitat along 
the Big Sandy, Santa Maria, and Bill Williams Rivers, which are part of 
Alamo Lake. The AWA Management Plan describes the unique riparian, 
wetland, and aquatic aspects of the area for a variety of species, 
specifically targeting the southwestern willow flycatcher for 
management and including the western yellow-billed cuckoo as a species 
of wildlife concern. Two of the specific resources are directed toward 
the habitat needs of the southwestern willow flycatcher and the western 
yellow-billed cuckoo: (1) Maintain and enhance aquatic and riparian 
habitats to benefit wildlife; and (2) restore, manage, and enhance 
habitats for wildlife of special concern. Large Fremont cottonwood and 
Goodding's willow forests, mesquite bosque, and small areas of wetland 
currently exist along the Big Sandy, Santa Maria, and upper Bill 
Williams Rivers. Increasing and improving these habitats will benefit 
riparian- and wetland-dependent species (AGFD 2012, pp. 4-6). The 
objective for maintaining and enhancing riparian habitat includes (a) 
Maintaining a reservoir level sufficient to ensure suitable soil 
moisture conditions in the mixed riparian forest, and (b) managing 
feral burros (Equus asinus), elk (Cervus canadensis), and eliminating 
trespass cattle to ensure that browsing does not harm existing habitat 
or impair recruitment of replacement vegetation. Livestock grazing is 
excluded from the riparian areas on the upper end of Alamo Lake and the 
lower portions of the Santa Maria and Big Sandy Rivers. Feral burro 
management objectives are to monitor and limit use of riparian 
vegetation such that annual bark stripping of live trees does not 
exceed 3 percent in any of the key monitoring areas (AGFD 2012, p. 10). 
Fencing may be needed to exclude unauthorized livestock and feral 
burros, exclude elk, control off-highway-vehicle access, and better 
manage authorized livestock (AGFD 2012, pp. 10-12).
    Although the original authority for Corps' Alamo Dam and Lake was 
for flood control, the Water Resources Development Act of 1996 (Pub. L. 
104-303) authorized the operation of the dam to provide fish and 
wildlife benefits both upstream and downstream of the dam as long as 
these actions do not reduce flood control and recreation benefits. A 
multi-year process is underway to develop a long-term operation plan 
that benefits environmental needs while meeting the dam's maintenance 
needs (USACE 2020, entire). Environmental needs include management to 
encourage regeneration and maintenance of riparian vegetation. Revised 
management is to benefit southwestern willow flycatchers and western 
yellow-billed cuckoos (USACE 2020, pp. 14-16).

Benefits of Inclusion--AWA Management Plan

    As discussed above under Effects of Critical Habitat Designation 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat. A critical habitat 
designation requires Federal agencies to consult on whether their 
activity would destroy or adversely modify critical habitat to the 
point where recovery could not be achieved. It is possible that in the 
future, Federal funding or permitting could occur on this AGFD property 
in conjunction with Corps lands, triggering consultation obligations 
for species' presence and critical habitat impacts. Recent section 7 
consultations with the Corps have addressed western yellow-billed 
cuckoos and their habitat along, downstream, and in inflows to Alamo 
Lake and we anticipate we will be

[[Page 20880]]

receiving another request for consultation regarding a change in 
operations at Alamo Dam.
    Because the leased property is owned by the Corps, we anticipate 
future Federal actions that may impact western yellow-billed cuckoos 
would be proposed by and coordinated with Corps. Ongoing planning among 
Federal, State, and nongovernment organizations on long-term management 
of Alamo Lake to benefit riparian habitat and the subsequent section 7 
consultation on proposed actions to western yellow-billed cuckoos is 
likely to result in improving habitat to support the species even if 
critical habitat is not designated. It is possible that the designation 
of critical habitat may also provide a benefit by identifying the 
geographic area where the western yellow-billed cuckoo occurs, raising 
the level of awareness for managers for both Federal and non-Federal 
entities. However, because the species has been considered for listing 
since 2001 and listed since 2014, areas where the species occurs 
(including Alamo Lake) are well known and land managers understand the 
value and responsibilities of maintaining habitat for a listed 
migratory species.
    Another important benefit of including lands in a critical habitat 
designation is that it can serve to inform and educate landowners, 
agencies, tribes, and the public regarding the potential conservation 
value of an area, and may help focus conservation efforts on areas of 
high value for certain species. Any information about the western 
yellow-billed cuckoo that reaches a wide audience, including parties 
engaged in conservation, birding, hunting, livestock grazing, 
recreation, and sportfishing activities, is valuable. The designation 
of critical habitat may also affect the implementation of Federal laws, 
such as the Clean Water Act. These laws analyze the potential for 
projects to significantly affect the environment. Critical habitat may 
signal the presence of sensitive habitat that could otherwise be missed 
in the review process for these other environmental laws; however, the 
listing of these species, and consultations that have already occurred 
already provide this benefit. In addition, a multi-year process 
underway among the Service, Reclamation, the Corps, AGFD, Arizona State 
Parks, TNC, USGS, and BLM to develop a long-term operation plan along 
the Bill Williams River (USACE 2020, entire), provides for additional 
informational and educational benefits. Therefore, in this case we view 
the regulatory benefit as being largely redundant with the benefit the 
species receives from listing under the Act, such that designating 
critical habitat may only result in minimal additional benefits.

Benefits of Exclusion--AWA Management Plan

    A considerable benefit from excluding AWA from western yellow-
billed cuckoo critical habitat is the maintenance and strengthening of 
ongoing conservation partnerships. We identified this area for possible 
exclusion based on the existence of a management plan. AGFD's 
management of AWA achieves greater protection than would be achieved 
through designation of critical habitat alone. The AWA management plan 
directs resources to maintain and enhance riparian habitat and restore, 
manage, and enhance habitat for wildlife of special concern including 
the western yellow-billed cuckoo. To maintain and enhance riparian 
habitat, AGFD commits to ensuring the reservoir level maintains proper 
soil moisture conditions and controls livestock and off-highway vehicle 
trespass.
    Although recreation and wildlife resources at Alamo Lake are 
managed by the AGFD under agreement with the Corps, the conservation 
space of Alamo Lake and Alamo Dam is owned and the dam operated by the 
Corps. Alamo Dam is operated primarily for flood control (as compared 
to water storage and delivery for other reservoirs) and typically 
remains at low levels, permitting occupancy of western yellow-billed 
cuckoo and southwestern willow flycatcher habitat. The Corps has 
consulted with the Service on dam operations and the potential effects 
to these species. In addition, we expect that ongoing conservation 
efforts in this area will continue with or without critical habitat 
designation, limiting the benefits of including the area. Consequently, 
after reviewing the best available information, we have determined that 
the benefits of excluding these Federal lands as critical habitat is 
substantial.
    Our collaborative relationship with AGFD makes a difference in our 
partnership with the numerous stakeholders involved with southwestern 
willow flycatcher and western yellow-billed cuckoo management and 
recovery and influences our ability to form partnerships with others. A 
multi-agency team is currently engaged in long-term management planning 
to benefit riparian habitat downstream and upstream of Alamo Lake 
(USACE 2020, entire). Our partners will continue to work on western 
yellow-billed cuckoo management and recovery without the designation of 
critical habitat. Ongoing public education by AGFD and other entities 
will continue without designation of critical habitat. The outreach 
highlights the value of the AWA for riparian habitat and riparian-
dependent birds like the yellow-billed cuckoo. The AWA is one of TNC's 
Sustainable Rivers Project and is included on the national online 
Wildlife Viewing Areas (Watchable Wildlife, Inc. 2020). AGFD devotes a 
web page to AWA on its own wildlife viewing website (AGFD 2020), 
emphasizing protection, restoration, management and enhancement of 
wildlife habitat and associated wildlife populations. AGFD's stated 
management philosophy includes allowing for nonconflicting wildlife-
associated recreation and other agency and public uses.
    Because so many important areas with western yellow-billed cuckoo 
habitat occur on non-Federal lands, collaborative relationships with 
non-Federal landowners are important in recovering the species. The 
western yellow-billed cuckoo and its habitat are expected to benefit 
substantially from voluntary landowner management actions that 
implement appropriate and effective conservation strategies. In 
addition, we have determined that by providing regulatory relief by 
excluding State managed areas from critical habitat, we can provide 
incentives to other non-Federal landowners for additional conservation. 
Where consistent with the discretion provided by the Act, it is 
beneficial to implement policies that provide positive incentives to 
non-Federal landowners to voluntarily conserve natural resources and 
that remove or reduce disincentives to conservation (Wilcove et al. 
1996, entire; Bean 2002, pp. 1-7). Thus, it is important for the 
western yellow-billed cuckoo recovery to build on continued 
conservation activities such as these with a proven partner, and to 
provide positive incentives for other non-Federal landowners who might 
be considering implementing voluntary conservation activities, but who 
have concerns about incurring incidental regulatory or economic 
impacts.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Alamo Lake 
Wildlife Area

    We have determined that the benefits of exclusion of AWA, with the 
implementation of AGFD's management plan, outweighs the benefits of 
inclusion because the AGFD is currently managing AWA western yellow-
billed cuckoo and southwestern willow flycatcher breeding sites 
successfully

[[Page 20881]]

and is committed to maintaining and enhancing aquatic and riparian 
habitats to benefit wildlife and to restore, manage, and enhance 
habitat for wildlife of special concern. Per the AWA management plan, 
AGFD has committed to managing burros to limit riparian vegetation 
damage to no greater than 3 percent and fencing to exclude unauthorized 
livestock, burros, elk, and off-highway vehicles (AGFD 2012, pp. 10-
12). These actions serve to manage and protect habitat needed for 
western yellow-billed cuckoo above those conservation measures which 
may be required if the area was designated as critical habitat. In 
making this finding, we have weighed the benefits of exclusion against 
the benefits of including these lands as critical habitat.
    Past, present, and future coordination with AGFD has provided and 
will continue to provide sufficient education regarding western yellow-
billed cuckoo habitat conservation needs on these lands, such that 
there would be minimal additional educational benefit from designation 
of critical habitat. The incremental conservation and benefit of 
designating critical habitat on part of AWA would largely be redundant 
with the combined benefits of the existing management. Therefore, the 
incremental conservation and regulatory benefits of designating 
critical habitat AWA are minimal.
    The benefits of designating critical habitat for the western 
yellow-billed cuckoo along AWA are relatively low in comparison to the 
benefits of exclusion. The mentioned long-term land management 
commitments in the AWA Management Plan, public education and awareness 
of the riparian value of the AWA, and continuation of a conservation 
partnership will help foster the maintenance and development of western 
yellow-billed cuckoo habitat. The AWA management plan outlines actions 
and commits to tasks that will enhance not only the western yellow-
billed cuckoo and its habitat, but other riparian species and the 
overall health of the riparian ecosystem.
    Exclusion of these lands from critical habitat will help preserve 
and strengthen the conservation partnership we have developed with AGFD 
and the Corps, as well as foster future partnerships and development of 
management plans. We anticipate that greater western yellow-billed 
cuckoo conservation can be achieved through these management actions 
and relationships than through what are likely to be rare consultations 
as to impacts of Federal projects on designated critical habitat.
    We are committed to working with AGFD to further the conservation 
of the western yellow-billed cuckoo and other endangered and threatened 
species. As evident from ongoing management to protect habitat, AGFD 
will continue to implement its management plans and play an active role 
to protect western yellow-billed cuckoos and their habitat. Therefore, 
in consideration of the relevant impact to our partnership with and the 
ongoing conservation management practices of AGFD, we determined that 
the significant benefits of exclusion outweigh the benefits of 
inclusion in the critical habitat designation.

Exclusion Will Not Result in Extinction of the Species--Alamo Lake 
State Wildlife Area

    We find that the exclusion of these lands will not lead to the 
extinction of the western yellow-billed cuckoo because long-term AGFD 
land management commitments will ensure the long-term persistence and 
protection of western yellow-billed cuckoo habitat at Alamo Lake and 
surrounding inflows. As discussed above under Effects of Critical 
Habitat Designation Section 7 Consultation, if a Federal action or 
permitting occurs, the known presence of western yellow-billed cuckoos 
or their habitat would require evaluation under the jeopardy standard 
of section 7 of the Act, even absent the designation of critical 
habitat, and thus will protect the species against extinction. Planning 
among Federal and State agencies, including AGFD, is underway to 
develop and implement a strategy to manage Alamo Dam releases to 
benefit western yellow-billed cuckoo riparian habitat upstream as well 
as downstream. We are engaged in this planning phase and anticipate 
section 7 consultation on changed operations of Alamo Dam to benefit 
riparian habitat. Collectively, these elements provide assurances that 
the western yellow-billed cuckoo will not go extinct as a result of 
excluding these riparian habitats from the critical habitat 
designation. After weighing the benefits of including western yellow-
billed cuckoo critical habitat against the benefit of exclusion, we 
have concluded that the benefits of excluding the AWA with long-term 
AGFD management commitments outweigh those that would result from 
designating this area as critical habitat. We have therefore excluded 
the entire Alamo Lake area (Unit 4, AZ-2: 2,793 ac (1,130 ha)) and 
portions of the Big Sandy River (Unit 31, AZ-29: 500 ac (202 ha)) 
within the AWA from this final critical habitat designation pursuant to 
section 4(b)(2) of the Act.
Unit 7 (AZ-5) Upper Verde River--Upper Verde River Wildlife Area
    We identified 6,047 ac (2,447 ha) within Unit 7 as critical 
habitat. The Upper Verde River Wildlife Area (UVRWA), owned and managed 
by the Arizona Game and Fish Department (AGFD), is located 
approximately 8 mi (12 km) north of Chino Valley in Yavapai County, 
Arizona. The property consists of four parcels located along the upper 
Verde River and lower Granite Creek. The AGFD also manages State Trust 
lands located adjacent to two of the deeded parcels. The primary 
management emphasis for the UVRWA property is to manage, maintain, and 
enhance riparian habitat and maintain native fish diversity while the 
secondary management emphases are environmental education and 
compatible wildlife oriented recreation (AGFD 2019, entire). The site 
is identified as an Important Bird Area (IBA) by the National Audubon 
Society, and a monitoring program in partnership with Prescott Audubon 
and Audubon Arizona is ongoing (National Audubon Society 2020f, 
entire). The UVRWA property has four noncontiguous parcels of private 
land, which collectively include approximately 3 mi (5 km) of the upper 
Verde River, draining easterly from the confluence with Granite Creek 
to the Prescott National Forest boundary 3.5 mi (5.6 km) downstream. 
Riparian vegetation is dominated by Arizona ash, boxelder, Arizona 
walnut, and netleaf hackberry (AGFD 2019, pp. 6-7). Some tamarisk is 
interspersed with native tree species. Lower Granite Creek supports a 
well-developed narrowleaf cottonwood (Populus acuminata) riparian 
forest.
    We received comments from the AGFD requesting an exclusion for 464 
ac (188 ha) of AGFD land and 18 ac (7 ha) of State Trust lands from the 
final designation of western yellow-billed cuckoo critical habitat 
under section 4(b)(2) of the Act. The analyses associated with this 
request appear below.

Benefits of Inclusion--Upper Verde River Wildlife Area

    As discussed above under Effects of Critical Habitat Designation 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the

[[Page 20882]]

regulatory benefit and costs of critical habitat. A critical habitat 
designation requires Federal agencies to consult on whether their 
activity would destroy or adversely modify critical habitat to the 
point where recovery could not be achieved. It is possible that in the 
future, Federal funding or permitting could occur on these State-owned 
and managed parcels for which a critical habitat designation may 
require consultation to analyze the impacts of the project on western 
yellow-billed cuckoo habitat. For example, a Corps permit was required 
for the Salt River Project (SRP) to construct the Upper Verde River 
Monitoring Flume project to monitor Verde River discharge. The flume 
was constructed on the Campbell Ranch property, one of the 
aforementioned parcels within the UVRWA. The Biological Opinion (BO) on 
the SRP flume project (Service 2003) was transmitted to the Corps prior 
to the listing of the western yellow-billed cuckoo as a threatened 
species, the flume remains operational and thus constitutes a federally 
authorized or permitted activity for which consultation in the future 
may be required.
    Another important benefit of including lands in a critical habitat 
designation is that it can serve to educate landowners, agencies, 
tribes, and the public regarding the potential conservation value of an 
area, and may help focus conservation efforts on areas of high value 
for certain species. Any information about the western yellow-billed 
cuckoo that reaches a wide audience, including parties engaged in 
conservation activities, is valuable. The designation of critical 
habitat may also affect the implementation of Federal laws, such as the 
Clean Water Act. These laws analyze the potential for projects to 
significantly affect the environment. Critical habitat may signal the 
presence of sensitive habitat that could otherwise be missed in the 
review process for these other environmental laws.
    AGFD, Prescott Audubon, and Audubon Arizona have surveyed, and 
continue to survey the UVRWA, and western yellow-billed cuckoos have 
been detected on the property (National Audubon Society 2020f, entire). 
The stated management emphases of the UVRWA--riparian habitat, native 
fish diversity, environmental education, and compatible wildlife 
oriented recreation--are wholly consistent with maintaining, enhancing, 
and potentially expanding habitat suitable for western yellow-billed 
cuckoos. The Corps, which implements the Clean Water Act, is already 
aware of riparian habitat on the UVRWA and the area being used by the 
western yellow-billed cuckoo, as evidenced by the BO described above. 
There is no demonstrable need for the educational aspect of critical 
habitat designation, and the site's current management does not require 
any additional conservation focus. Therefore, the incremental benefits 
of a western yellow-billed cuckoo designation within the UVRWA would be 
minimal.

Benefits of Exclusion--Upper Verde River Wildlife Area

    A considerable benefit from excluding AGFD-owned and managed lands 
in the UVRWA as western yellow-billed cuckoo critical habitat is the 
maintenance and strengthening of ongoing conservation partnerships with 
AGFD, Prescott Audubon, and Audubon Arizona through designation as the 
Upper Verde River State Wildlife Area Important Bird Area (National 
Audubon Society 2020f, entire). Although not all sites AGFD manages 
qualify for exclusion, the AGFD has demonstrated a partnership with the 
Service by becoming a conservation partner in conducting surveys and 
developing and implementing management plans (Hofer 2015a, entire; 
Hofer 2015b, entire; Service 2019a, pp. 11-14, 16-17).
    The success of AGFD's management of the UVRWA is demonstrated by 
the consistent detection of western yellow-billed cuckoos and other 
obligate riparian birds (National Audubon Society 2020f, entire). We 
expect to continue work and partner with the AGFD on activities to 
benefit the western yellow-billed cuckoo based on our existing working 
relationship and coordination activities with the State. Exclusion of 
this area from the designation will maintain and strengthen the 
partnership between the Service and AGFD. Our collaborative 
relationship with AGFD supports our partnership with the numerous 
stakeholders involved with western yellow-billed cuckoo management and 
recovery and influences our ability to form partnerships with others. 
Concerns over perceived added regulation potentially imposed by 
critical habitat could harm this collaborative relationship.
    Because so many important areas with western yellow-billed cuckoo 
habitat occur on State lands, collaborative relationships with the 
States will be essential in order to recover the species. The western 
yellow-billed cuckoo and its habitat are expected to benefit 
substantially from management actions that implement appropriate and 
effective conservation strategies. In addition, we have determined that 
by providing regulatory relief by excluding State managed areas from 
critical habitat, we can provide incentives to other non-Federal 
landowners for additional conservation. Where consistent with the 
discretion provided by the Act, it is necessary to implement policies 
that provide positive incentives to private landowners to voluntarily 
conserve natural resources and that remove or reduce disincentives to 
conservation (Wilcove et al. 1996, entire; Bean 2002, pp. 1-7). Thus, 
western yellow-billed cuckoo recovery will build on continued 
conservation activities such as these with a proven partner, and will 
provide positive incentives for other private landowners who might be 
considering implementing voluntary conservation activities, but who 
have concerns about incurring incidental regulatory or economic 
impacts.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Upper Verde 
River Wildlife Area

    We have determined that the benefits of exclusion of 464 ac (188 
ha) of AGFD land and 18 ac (7 ha) of State Trust lands on the Upper 
Verde River within the AGFD UVRWA, considering the management of the 
property, outweigh the benefits of inclusion because current management 
efforts maintain the physical or biological features necessary to 
develop, maintain, recycle, and protect essential habitat essential for 
western yellow-billed cuckoo conservation. These actions serve to 
manage and protect habitat needed for western yellow-billed cuckoo 
above those conservation measures which may be required if the area was 
designated as critical habitat. In making this finding, we have weighed 
the benefits of exclusion against the benefits of including these lands 
as critical habitat.
    Past, present, and future coordination with AGFD has provided and 
will continue to provide sufficient education regarding western yellow-
billed cuckoo habitat conservation needs on the UVRWA, such that there 
would be minimal additional educational benefit from designation of 
critical habitat. The incremental conservation and benefit of 
designated critical habitat on AGFD-owned lands in the UVRWA would 
largely be redundant with the combined benefits of the existing 
management. Therefore, the incremental conservation and regulatory 
benefits of designating critical habitat on AGFD lands along the Upper 
Verde River are minimal.
    The benefits of designating critical habitat for the western 
yellow-billed cuckoo within the UVRWA are

[[Page 20883]]

relatively low in comparison to the benefits of exclusion. The 
management of the UVRWA and continuation of a conservation partnership 
will continue to help foster the maintenance and development of western 
yellow-billed cuckoo habitat. We anticipate that greater western 
yellow-billed cuckoo conservation can be achieved through these 
management actions and relationships than through designation of 
critical habitat, because actions with a Federal nexus are likely to be 
rare.
    On the other hand, the benefits of excluding AGFD-owned lands 
within the UVRWA along the Upper Verde River are considerable. The 
UVRWA already exhibits riparian vegetation occupied by western yellow-
billed cuckoos and AGFD's management of the property is focused on 
maintaining that riparian habitat. Exclusion of these lands from 
critical habitat will help preserve and strengthen the conservation 
partnership we have developed with AGFD, reinforce those we are 
building with other entities, and foster future partnerships and 
development of management plans whereas inclusion will negatively 
impact our relationships with AGFD. We are committed to working with 
AGFD to further western yellow-billed cuckoo conservation and other 
endangered and threatened species. AGFD will continue to implement 
their UVRWA management plan and play an active role to protect western 
yellow-billed cuckoos and their habitat. Therefore, in consideration of 
the relevant impact to our partnership with AGFD, and the ongoing 
conservation management practices of AGFD, we determined that the 
significant benefits of exclusion outweigh the benefits of inclusion in 
the critical habitat designation. We have therefore excluded these 
lands from this final critical habitat designation pursuant to section 
4(b)(2) of the Act.

Exclusion Will Not Result in Extinction of the Species--Upper Verde 
River Wildlife Area

    We also find that the exclusion of these lands will not lead to the 
extinction of the western yellow-billed cuckoo, nor hinder its recovery 
based on AGFD's track record of management of the UVRWA will ensure the 
long-term persistence and protection of western yellow-billed cuckoo 
habitat on the Upper Verde River. AGFD has shown a long-term commitment 
to maintaining and enhancing areas within its jurisdiction to benefit 
the western yellow-billed cuckoo and we expect such commitment to 
continue in the future. As discussed above under Effects of Critical 
Habitat Designation Section 7 Consultation, if a Federal action or 
permitting occurs, the known presence of western yellow-billed cuckoos 
or their habitat would require evaluation under the jeopardy standard 
of section 7 of the Act, even absent the designation of critical 
habitat, and thus will protect the species against extinction. While 
future section 7 consultations along the Upper Verde River are likely 
to be infrequent, the routine implementation of the UVRWA management 
plan provide assurances that the western yellow-billed cuckoo will not 
go extinct as a result of excluding these lands from the critical 
habitat designation. Accordingly, we have determined that 673 ac (272 
ha) of the Upper Verde River Wildlife Area and other State lands are 
excluded under subsection 4(b)(2) of the Act because the benefits of 
excluding these lands from critical habitat for the western yellow-
billed cuckoo outweigh the benefits of their inclusion, and the 
exclusion of these lands from the designation will not result in the 
extinction of the species.
Unit 13 (AZ-11) Pinal Creek--Freeport McMoRan Management Plan
    We have identified approximately 380 ac (154 ha) as critical 
habitat in Pinal Creek for exclusion, owned by the private company, 
Freeport-McMoRan Incorporated (FMC). FMC has ownership and management 
responsibility for a portion of Pinal Creek in Gila County, Arizona. 
FMC has been managing the area since 1998, and actively implementing 
conservation measures for improving the riparian habitat for the 
southwestern willow flycatcher and developed a management plan in 2012 
(FMC 2012, entire). Conservation actions being implemented on FMC lands 
include control of exotic riparian plant species, improved cattle 
management, fencing, monitoring, and limiting access to the site in 
order to foster the development of native riparian habitat. From 1999 
to 2007, the water and land management actions implemented resulted in 
an 88 percent increase in total riparian vegetation volume within the 
area (FMC 2012, p. 11). In 2015, FMC revised its 2012 southwestern 
willow flycatcher management plan for the proposed segment of Pinal 
Creek to include the western yellow-billed cuckoo (FMC 2015, entire). 
This revised plan, effective on designation of final critical habitat 
with no termination date, commits FMC to continue implementing the land 
management actions initiated through a Corps permit that have resulted 
in the improved abundance, distribution, and quality of riparian 
habitat for nesting southwestern willow flycatchers and western yellow-
billed cuckoos.

Benefits of Inclusion--Freeport McMoRan Management Plan

    As discussed above under Effects of Critical Habitat Designation 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat.
    It is possible that in the future, Federal funding or permitting 
could occur on this privately owned and managed segment of Pinal Creek 
where a critical habitat designation may benefit western yellow-billed 
cuckoo habitat. For example, a Corps permit was needed to implement 
FMC's remediation program within Pinal Creek. This permit and 
associated section 7 consultation resulted in surveys being conducted 
for the southwestern willow flycatcher. The area was previously thought 
not to contain nesting occurrences of the species. The results of the 
surveys confirmed nesting and breeding occurrences of the southwestern 
willow flycatcher and its habitat. The implementation of the habitat 
management conditions included in the Corps permit have been a 
significant contributing factor in causing both species to become 
established.
    However, now that both species are known to occur along Pinal 
Creek, the benefits of a critical habitat designation are reduced to 
the possible incremental benefit of critical habitat because the 
designation would no longer be the sole catalyst for initiating section 
7 consultation. Also, because this stream segment is privately owned 
and is primarily being managed for environmental remediation and 
habitat improvement, we do not anticipate future Federal actions to 
impact the current remediation action or habitat improvements 
associated with the Corps permit and continued management actions. 
Because of the lack of past section 7 consultations within this Pinal 
Creek segment of privately owned land, the reduced likelihood of future 
Federal actions altering the current environment clean-up and 
management of this stream segment, the presence of southwestern willow 
flycatcher and western yellow-billed cuckoo territories, and the

[[Page 20884]]

commitment to continue implementing land management actions that 
maintain southwestern willow flycatcher and western yellow-billed 
cuckoo habitat, the benefits of a critical habitat designation on this 
lower segment of Pinal Creek are minimized.
    Another important benefit of including lands in a critical habitat 
designation is that it can serve to educate landowners, agencies, 
tribes, and the public regarding the potential conservation value of an 
area, and may help focus conservation efforts on areas of high value 
for certain species. Any information about the western yellow-billed 
cuckoo that reaches a wide audience, including parties engaged in 
conservation activities, is valuable. The designation of critical 
habitat may also affect the implementation of Federal laws, such as the 
Clean Water Act. These laws analyze the potential for projects to 
significantly affect the environment. Critical habitat may signal the 
presence of important sensitive habitat that could otherwise be missed 
in the review process for these other environmental laws.
    At FMC properties in both Arizona and New Mexico, FMC has helped 
fund western yellow-billed cuckoo studies and cooperated with 
conducting status surveys. Although the implementation of the Clean 
Water Act was a catalyst in focusing conservation efforts along Pinal 
Creek, FMC's existing conservation awareness and continued 
implementation of conservation actions have greatly improved the 
physical and biological features for both western yellow-billed cuckoo 
and southwestern willow flycatcher.
    FMC's long-term commitment to environmental clean-up and land 
management actions that helped create habitat to support southwestern 
willow flycatcher and western yellow-billed cuckoo territories will 
continue based on Southwestern willow flycatcher 2012 and 2015 
Management Plans and discussions with FMC to incorporate western 
yellow-billed cuckoos into the efforts. Therefore, the incremental 
benefits of a western yellow-billed cuckoo critical habitat designation 
along Pinal Creek would be minimal.

Benefits of Exclusion--Freeport McMoRan Management Plan

    A considerable benefit from excluding FMC-owned Pinal Creek lands 
as western yellow-billed cuckoo critical habitat is the maintenance and 
strengthening of ongoing conservation partnerships. FMC has 
demonstrated a partnership with the Service by becoming a conservation 
partner in the development and implementation of the Southwestern 
Willow Flycatcher Recovery Plan, and by solidifying their conservation 
actions in management plans submitted to us for the southwestern willow 
flycatcher along the upper Gila River at the U-Bar Ranch in New Mexico 
(see below) and for the spikedace and loach minnow (2007 and 2011). 
They have also have demonstrated a willingness to conserve southwestern 
willow flycatcher and western yellow-billed cuckoo habitat at Pinal 
Creek and to partner with us by exploring the initial stages of a 
habitat conservation plan.
    The success of FMC's management is demonstrated in the development 
of riparian areas that provide habitat for nesting southwestern willow 
flycatchers and western yellow-billed cuckoos. FMC's remedial actions 
from operation of the Lower Pinal Creek Treatment Plant involve output 
of water into Pinal Creek, which helps the habitat remain potentially 
wetter than it would be without treated water from the plant. 
Additional evidence of the partnership between FMC and the Service is 
shown by FMC's commitment to provide for adaptive management, such that 
if future western yellow-billed cuckoo surveys and habitat monitoring 
detect significant positive or negative changes in the numbers of 
nesting western yellow-billed cuckoos or in key habitat parameters, 
they will confer with the Service regarding the impacts of such changes 
and will adopt alternative conservation measures to promote cuckoo 
habitat. Exclusion of this area from the designation will maintain and 
strengthen the partnership between the Service and FMC.
    Our collaborative relationship with FMC makes a difference in our 
partnership with the numerous stakeholders involved with western 
yellow-billed cuckoo management and recovery and influences our ability 
to form partnerships with others. Concerns over perceived added 
regulation potentially imposed by critical habitat could harm this 
collaborative relationship.
    Because so many important areas with western yellow-billed cuckoo 
habitat occur on private lands, collaborative relationships with 
private landowners will be essential in order to recover the western 
yellow-billed cuckoo. The western yellow-billed cuckoo and its habitat 
are expected to benefit substantially from voluntary landowner 
management actions that implement appropriate and effective 
conservation strategies. Where consistent with the discretion provided 
by the Act, it is beneficial to implement policies that provide 
positive incentives to private landowners to voluntarily conserve 
natural resources and that remove or reduce disincentives to 
conservation (Wilcove et al. 1996, entire; Bean 2002, pp. 1-7). Thus, 
it is essential for the western yellow-billed cuckoo recovery to build 
on continued conservation activities such as these with a proven 
partner, and to provide positive incentives for other private 
landowners who might be considering implementing voluntary conservation 
activities, but who have concerns about incurring incidental regulatory 
or economic impacts.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Pinal Creek

    We have determined that the benefits of exclusion of Pinal Creek on 
private lands managed by FMC, with the implementation of their 
management plan, outweigh the benefits of inclusion because current 
management efforts maintain the physical or biological features 
necessary to develop, maintain, recycle, and protect essential habitat 
essential for western yellow-billed cuckoo conservation. These actions 
serve to manage and protect habitat needed for western yellow-billed 
cuckoo above those conservation measures which may be required if the 
area was designated as critical habitat. In making this finding, we 
have weighed the benefits of exclusion against the benefits of 
including these lands as critical habitat.
    Past, present, and future coordination with FMC has provided and 
will continue to provide sufficient education regarding western yellow-
billed cuckoo habitat conservation needs on these lands, such that 
there would be minimal additional educational benefit from designation 
of critical habitat. The incremental conservation and benefit of 
designated critical habitat on FMC-owned lands would largely be 
redundant with the combined benefits of the existing management. 
Therefore, the incremental conservation and regulatory benefits of 
designating critical habitat on FMC lands along Pinal Creek are 
minimal.
    The benefits of designating critical habitat for the western 
yellow-billed cuckoo along Pinal Creek are relatively low in comparison 
to the benefits of exclusion. The operation of the Lower Pinal Creek 
Treatment Plant remedial activities, long-term land management 
commitments, and continuation of a conservation partnership will 
continue to help foster the maintenance and development of western 
yellow-billed cuckoo habitat. We anticipate that greater western 
yellow-billed cuckoo conservation can be achieved through

[[Page 20885]]

these management actions and relationships than through consultation 
regarding impacts to designated critical habitat on a project-by-
project basis on private land where such consultations are expected to 
be rare.
    On the other hand, the benefits of excluding FMC-owned lands along 
Pinal Creek from critical habitat are considerable. FMC's management 
plan establishes a framework for cooperation and coordination with the 
Service in connection with resource management activities based on 
adaptive management principles. Most importantly, the management plan 
indicates a continuing commitment to ongoing management that has 
resulted in nesting cuckoo habitat. Exclusion of these lands from 
critical habitat will help preserve and strengthen the conservation 
partnership we have developed with FMC, reinforce those we are building 
with other entities, and foster future partnerships and development of 
management plans whereas inclusion will negatively impact our 
relationships with FMC and other existing or future partners. We are 
committed to working with FMC to further western yellow-billed cuckoo 
conservation and other endangered and threatened species. FMC has 
agreed to continue to implement their management plans and play an 
active role to protect western yellow-billed cuckoos and their habitat. 
Therefore, in consideration of the relevant impact to our partnership 
with FMC, and the ongoing conservation management practices of FMC, we 
determined that the significant benefits of exclusion outweigh the 
benefits of inclusion in the critical habitat designation.
    After weighing the benefits of including as western yellow-billed 
cuckoo critical habitat against the benefit of exclusion, we have 
concluded that the benefits of excluding the approximate 5.8 km (3.6 
mi) of Pinal Creek with long-term FMC management commitments outweigh 
those that would result from designating this area as critical habitat.

Exclusion Will Not Result in Extinction of the Species--Freeport 
McMoRan Management Plan

    We find that the exclusion of these lands will not lead to the 
extinction of the western yellow-billed cuckoo, nor hinder its recovery 
because long-term FMC water and land management commitments will ensure 
the long-term persistence and protection of cuckoo habitat at Pinal 
Creek. As discussed above under Effects of Critical Habitat Designation 
Section 7 Consultation, if a Federal action or permitting occurs, the 
known presence of western yellow-billed cuckoos or their habitat would 
require evaluation under the jeopardy standard of section 7 of the Act, 
even absent the designation of critical habitat, and thus will protect 
the species against extinction. While future section 7 consultations 
along this Pinal Creek are likely to be rare, the jeopardy standard of 
section 7 of the Act and routine implementation of conservation 
measures through the section 7 process due to the occurrence of western 
yellow-billed cuckoos on this property provide assurances that the 
western yellow-billed cuckoo will not go extinct as a result of 
excluding these lands from the critical habitat designation. As a 
result, we are excluding 380 ac (154 ha) of land from the final 
designation along Pinal Creek.
Unit 28 (AZ-26)--Freeport McMoRan Eagle Creek Management Plan
    We have identified approximately 1,257 ac (509 ha) of critical 
habitat in Eagle Creek owned by Freeport-McMoRan Incorporated (FMC), a 
private mining company, for exclusion. FMC has ownership and management 
responsibility for a portion of Eagle Creek in Greenlee County, 
Arizona. FMC, the Service, BLM, and USFS have coordinated on a 2020 
Draft Eagle Creek Management Plan for managing western yellow-billed 
cuckoos to reduce livestock damage to Eagle Creek by providing grazing 
lands in the upland areas. The desired result is the improvement of the 
abundance, distribution, and quality of riparian breeding habitat for 
western yellow-billed cuckoos in perpetuity (FMC 2020, pp. 74-85). 
Eagle Creek and tributaries within Bee Canyon in Greenlee County flow 
through private lands belonging to FFMC. Eagle Creek meanders in and 
out of Graham County along the eastern boundary of the San Carlos 
Apache Reservation.
    Groundwater withdrawal in Eagle Creek, primarily for water supply 
for a large open-pit copper mine at Morenci, Arizona, dries portions of 
the stream (Sublette et al. 1990, p. 19; Propst et al. 1986, p. 7). 
Mining is the largest industrial water user in southeastern Arizona. 
The Morenci mine on Eagle Creek is North America's largest producer of 
copper, covering approximately 60,000 ac (24,281 ha). Water for the 
mine is imported from the Black River, diverted from Eagle Creek as 
surface flows, or withdrawn from the Upper Eagle Creek Well Field 
(Arizona Department of Water Resources 2009, p. 62).

Benefits of Inclusion--Freeport McMoRan Eagle Creek Management Plan

    As discussed above under Effects of Critical Habitat Designation 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat.
    A critical habitat designation requires Federal agencies to consult 
on whether their activity would destroy or adversely modify critical 
habitat to the point where recovery could not be achieved. We have a 
few records of section 7 consultations addressing western yellow-billed 
cuckoos and their habitat along Eagle Creek. However, because much of 
this stream segment is privately owned, we do not anticipate future 
Federal actions to impact western yellow-billed cuckoos. The 
designation of critical habitat would provide a benefit by identifying 
the geographic area important for western yellow-billed cuckoos. 
However, because the species has been considered for listing since 2001 
and listed since 2014, areas where the species occurs are well known 
and land managers understand the value of maintaining habitat for the 
species.
    Another important benefit of including lands in a critical habitat 
designation is that it can serve to educate landowners, agencies, 
tribes, and the public regarding the potential conservation value of an 
area, and may help focus conservation efforts on areas of high value 
for certain species. Any information about the western yellow-billed 
cuckoo that reaches a wide audience, including parties engaged in 
conservation, livestock grazing, mining, and sportfishing activities, 
is valuable. The designation of critical habitat may also affect the 
implementation of Federal laws, such as the Clean Water Act. These laws 
analyze the potential for projects to significantly affect the 
environment. Critical habitat may signal the presence of sensitive 
habitat that could otherwise be missed in the review process for these 
other environmental laws; however, the listing of this species and 
consultations that have already occurred will provide this benefit. 
Therefore, in this case we view the regulatory benefit to be largely as 
redundant with the benefit the species receives from listing under the 
Act and

[[Page 20886]]

may only result in minimal additional benefits.
    Eagle Creek and Bee Canyon are in isolated areas; however, there 
are ranchers in the area, and the area is used for sportfishing by the 
general public (77 FR 10868; February 23, 2012). Designation of 
critical habitat could inform those who either live locally or use the 
area for recreation about listed species and their habitat needs. FMC 
has indicated that this area is heavily used by employees of the 
Morenci Mine, and public outreach as a result of a designation would be 
used to educate users.
    Overall, the benefits of designating western yellow-billed cuckoo 
critical habitat along Eagle Creek and Bee Canyon are minimal. FMC, 
BLM, USFS, and grazing permittees are aware of the occurrence of 
western yellow-billed cuckoos along Eagle Creek and these partners will 
continue to be engaged with the Draft Eagle Creek Western Yellow-billed 
Cuckoo Management Plan at this time and in implementation when 
finalized at time of final designation. Thus, the educational and 
regulatory benefits of a critical habitat designation are minimized.

Benefits of Exclusion--Freeport McMoRan Eagle Creek Management Plan

    A considerable benefit from excluding this part of Eagle Creek and 
Bee Canyon as western yellow-billed cuckoo critical habitat is the 
maintenance and strengthening of ongoing conservation partnerships. In 
2005, FMC prepared and submitted a plan to the Service for the 
management of the U-Bar Ranch, which supported exclusion of the FMC's 
land from the 2006 southwestern willow flycatcher critical habitat 
designation. The following year, FMC prepared and submitted management 
plans for the spikedace and loach minnow in Eagle Creek and in the 
upper Gila River, in the Gila/Cliff Valley. In 2012, FMC submitted a 
management plan for southwestern willow flycatchers and in 2015 for 
western yellow-billed cuckoos on their reach of Pinal Creek, where both 
species are breeding in riparian habitat (FMC 2012, entire; FMC 2015, 
entire). In part from their knowledge and success with Pinal Creek, FMC 
has committed to management to improve Eagle Creek and Bee Canyon 
riparian habitat, by fencing out livestock and providing the 
infrastructure for upland water delivery for displaced livestock (FMC 
2020, pp. 74-85), These actions arose during coordination efforts with 
BLM, FMC, and the Service while exploring conservation options for 
western yellow-billed cuckoo in this stretch of Eagle Creek. Additional 
evidence of the partnership between FMC and the Service is shown by 
FMC's commitment in the 2015 Pinal Creek Management Plan and the 2020 
Draft Eagle Creek Management Plan (FMC 2020, pp. 74-85) to provide for 
adaptive management, such that if future western yellow-billed cuckoo 
surveys and habitat monitoring detect significant negative changes in 
the numbers of western yellow-billed cuckoos or in key habitat 
parameters, they will confer with the Service regarding the impacts of 
such changes and will adopt alternative conservation measures to 
promote western yellow-billed cuckoo habitat.
    Our collaborative relationship with FMC makes a difference in our 
partnership with the numerous stakeholders involved with southwestern 
willow flycatcher and western yellow-billed cuckoo management and 
recovery and influences our ability to form partnerships with others.
    Because so many important areas with western yellow-billed cuckoo 
habitat occur on private lands, collaborative relationships with 
private landowners are important in recovering the species. The western 
yellow-billed cuckoo and its habitat are expected to benefit 
substantially from voluntary landowner management actions that 
implement appropriate and effective conservation strategies. Where 
consistent with the discretion provided by the Act, it is beneficial to 
implement policies that provide positive incentives to private 
landowners to voluntarily conserve natural resources and that remove or 
reduce disincentives to conservation (Wilcove et al. 1996, entire; Bean 
2002, pp. 1-7). Thus, it is important for the western yellow-billed 
cuckoo recovery to build on continued conservation activities such as 
these with a proven partner, and to provide positive incentives for 
other private landowners who might be considering implementing 
voluntary conservation activities, but who have concerns about 
incurring incidental regulatory or economic impacts.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Freeport 
McMoRan Eagle Creek Management Plan

    We have determined that the benefits of exclusion of Eagle Creek 
and Bee Canyon, with the implementation of the FMC management plan (FMC 
2020, pp. 74-85), outweigh the benefits of inclusion, and will not 
result in extinction of the western yellow-billed cuckoo because the 
FMC is currently managing Pinal Creek and U-Bar western yellow-billed 
cuckoo and southwestern willow flycatcher breeding sites successfully 
and is committing to funding, fencing out livestock from Eagle Creek 
and Bee Canyon, developing livestock waters in the uplands that do not 
compromise upland springs, monitoring vegetation and western yellow-
billed cuckoos, preparing annual reports, and conducting adaptive 
management to ensure the fencing and watering project conserves habitat 
in Eagle Creek and Bee Canyon. These actions serve to manage and 
protect habitat needed for western yellow-billed cuckoo above those 
conservation measures which may be required if the area was designated 
as critical habitat. In making this finding, we have weighed the 
benefits of exclusion against the benefits of including these lands as 
critical habitat.
    Past, present, and future coordination with FMC has provided and 
will continue to provide sufficient education regarding western yellow-
billed cuckoo habitat conservation needs on these lands, such that 
there would be minimal additional educational benefit from designation 
of critical habitat beyond those achieved from listing the species 
under the Act, and FMC's continued work in conserving these species.
    The incremental conservation and regulatory benefit of designating 
critical habitat on part of Eagle Creek and Bee Canyon would largely be 
redundant with the combined benefits of the existing management. 
Therefore, the incremental conservation and regulatory benefits of 
designating critical habitat along Eagle Creek and Bee Canyon are 
minimal.
    The benefits of designating critical habitat for the western 
yellow-billed cuckoo along Eagle Creek and Bee Canyon are relatively 
low in comparison to the benefits of exclusion. The mentioned long-term 
land management commitments, along with the Draft Eagle Creek 
Management Plan, and continuation of a conservation partnership will 
help foster the maintenance and development of western yellow-billed 
cuckoo habitat. The fencing and water development for upland livestock 
will be designed to keep livestock from using Eagle Creek and Bee 
Canyon, thereby reducing the effects from grazing and trampling 
riparian vegetation, while allowing for regeneration to improve 
habitat. FMC's management plan outlines actions and commits to tasks 
that will enhance not only the western yellow-billed cuckoo, but other 
riparian species and the overall health of the creek ecosystem in areas 
where cattle are fenced out.

[[Page 20887]]

    Exclusion of these lands from critical habitat will help preserve 
and strengthen the conservation partnership we have developed with FMC, 
assist BLM, USFS, and the grazing lessee in managing livestock to 
prevent it from entering the Gila Box area, as well as foster future 
partnerships and development of management plans.
    Although a critical habitat designation would require Federal 
actions to consult on adverse modification, because of the infrequency 
of section 7 consultations within Eagle Creek, the reduced likelihood 
of future Federal actions, and the landowners commitment to continue 
implementing land management actions that maintain western yellow-
billed cuckoo habitat, the benefits of a critical habitat designation 
on Eagle Creek are minimized. We anticipate that greater western 
yellow-billed cuckoo conservation can be achieved through these 
management actions and relationships than through implementation of 
critical habitat designation on a project-by-project basis on private 
land where the occurrence of implementation of critical habitat 
designation due to Federal funding or permitting is expected to be 
rare.
    We are committed to working with FMC to further western yellow-
billed cuckoo conservation and other endangered and threatened species. 
As evident from ongoing conversations and adaptive management actions, 
FMC will continue to implement its management plans and play an active 
role to protect western yellow-billed cuckoos and their habitat. 
Therefore, in consideration of the relevant impact to our partnership 
with FMC and the ongoing conservation management practices of FMC, we 
determined that the significant benefits of exclusion outweigh the 
benefits of inclusion in the critical habitat designation.

Exclusion Will Not Result in Extinction of the Species--Freeport 
McMoRan Eagle Creek Management Plan

    We find that the exclusion of these lands will not lead to the 
extinction of the western yellow-billed cuckoo, nor hinder its recovery 
because long-term FMC water and land management commitments will ensure 
the long-term persistence and protection of western yellow-billed 
cuckoo habitat at Eagle Creek and Bee Canyon. As discussed above under 
Effects of Critical Habitat Designation Section 7 Consultation, if a 
Federal action or permitting occurs, the known presence of western 
yellow-billed cuckoos or their habitat would require evaluation under 
the jeopardy standard of section 7 of the Act, even absent the 
designation of critical habitat, and thus will protect the species 
against extinction. Collectively, these elements provide assurances 
that the western yellow-billed cuckoo will not go extinct as a result 
of excluding these riparian habitats from the critical habitat 
designation. After weighing the benefits of including western yellow-
billed cuckoo critical habitat against the benefit of exclusion, we 
have concluded that the benefits of excluding the Eagle Creek and Bee 
Canyon with long-term FMC management commitments outweigh those that 
would result from designating this area as critical habitat. We have 
therefore excluded approximately 1,257 ac (509 ha) of land from this 
final critical habitat designation pursuant to section 4(b)(2) of the 
Act.
Unit 64 (CA-2) South Fork Kern River Valley--Sprague Ranch
    We identified approximately 40 ac (16 ha) of private land for 
exclusion from critical habitat based on management and conservation 
easements for the Sprague Ranch. The Sprague Ranch, included in Unit 64 
(CA-2, South Fork Kern River Valley), warrants exclusion from the final 
designation of critical habitat under section 4(b)(2) of the Act 
because we have determined that the benefits of excluding Sprague Ranch 
from western yellow-billed cuckoo critical habitat designation will 
outweigh the benefits of including it in the final designation based on 
the long-term protections afforded for southwestern willow flycatcher 
habitat. The following represents our rationale for excluding the 
Sprague Ranch from the final designated critical habitat for the 
western yellow-billed cuckoo.
    The Sprague Ranch is an approximately 4,380-ac (1,772-ha) parcel of 
private land which is managed and conservation easements purchased in a 
public-private partnership by the Audubon Society, CDFW, and the Corps 
in 2005. The funding used to purchase the easement and manage the 
Sprague Ranch was provided by the Corps as a result of biological 
opinions issued by the Service for the long-term operation of Lake 
Isabella Dam and Reservoir (Service 1996, 2005b) specifically to 
provide habitat for and conservation of the southwestern willow 
flycatcher.
    The Sprague Ranch is located immediately north and adjacent to the 
Kern River Preserve (KRP), which is owned and operated by Audubon, and 
shares a common border with the KRP of over 3 mi (5 km). Together these 
co-managed lands provide opportunities for western yellow-billed cuckoo 
breeding, feeding, and sheltering. The western yellow-billed cuckoo 
occurs throughout portions of the Sprague Ranch. The Sprague Ranch 
contains existing riparian forest that can support and maintain nesting 
territories and migrating and dispersing western yellow-billed cuckoos.
    The Sprague Ranch is managed pursuant to a conservation plan dated 
January 25, 2005. This plan was prepared in partnership with the 
Service, CDFW, and Audubon to provide consistent management of lands 
acquired in Unit 64 in compliance with the biological opinions issued 
by the Service. The Audubon Society is the lead entity for management 
of the Kern River Preserve, an area adjacent to the Sprague Ranch. 
Management actions required for the Sprague Ranch include: Demographic 
surveys, cowbird trapping, nonnative vegetation removal, livestock 
exclusion, hydrologic improvement, planting of native vegetation, 
noxious weed control activities, flood irrigating low-lying areas, 
upgrading of fencing, upgrading irrigation systems, monitoring, and 
reporting. These measures will assist in improvement, management, and 
conservation of western yellow-billed cuckoo habitat in perpetuity and 
meet our criteria for exclusion.

Benefits of Inclusion--Sprague Ranch

    As discussed above under Effects of Critical Habitat Designation 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat. A critical habitat 
designation requires Federal agencies to consult on whether their 
activity would destroy or adversely modify critical habitat to the 
point where recovery could not be achieved. The South Fork Kern River 
Valley is occupied by western yellow-billed cuckoos during the breeding 
season and the area and its habitat are well known to be important to 
the western yellow-billed cuckoo and therefore, if a Federal action or 
permitting occurs, there is a catalyst for evaluation under section 7 
of the Act (mostly due to listing the species as threatened). Through 
section 7 consultation, some minimal benefit could occur from a 
critical habitat designation at the Sprague Ranch. The Sprague Ranch 
may have additional conservation value above sustaining

[[Page 20888]]

existing populations because it is being managed to not only maintain 
existing habitat, but also to improve, protect, and possibly expand 
upon the amount of nesting habitat that would provide for growth of 
existing populations. Expansion of existing populations in these areas 
would contribute to recovery of the western yellow-billed cuckoo. The 
implementation of future management actions to improve western yellow-
billed cuckoo habitat on Sprague Ranch is unlikely to require section 7 
consultation between the Corps (the likely Federal action agency) and 
the Service, because all habitat improvement and management actions are 
not likely to result in adverse effects to the western yellow-billed 
cuckoo or its habitat. As a result, any rare Federal action that may 
result in formal consultation will likely result in only discretionary 
conservation recommendations (i.e., adverse modification threshold is 
not likely to be reached). Therefore, there is an extremely low 
probability of mandatory elements (i.e., reasonable and prudent 
alternatives) arising from formal section 7 consultations that include 
consideration of designated western yellow-billed cuckoo critical 
habitat, and as a result, the benefits of inclusion are minimized.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners, 
agencies, tribes, and the public regarding the potential conservation 
value of an area, and may help focus conservation efforts on areas of 
high conservation value for certain species. Any information about the 
western yellow-billed cuckoo that reaches a wide audience, including 
parties engaged in conservation activities, is valuable. The 
designation of critical habitat may also affect the implementation of 
Federal laws, such as the Clean Water Act. These laws analyze the 
potential for projects to significantly affect the environment. 
Critical habitat may signal the presence of sensitive habitat that 
could otherwise be missed in the review process for these other 
environmental laws.
    There would be little additional educational and informational 
benefit gained from including this portion of the Sprague Ranch within 
the designation because the Sprague Ranch was purchased specifically 
for habitat conservation and is well known as an important area for 
western yellow-billed cuckoo management and recovery. Also, managing 
agencies such as the Corps, CDFW, and Audubon Society are implementing 
a long-term management plan that addresses western yellow-billed cuckoo 
habitat; therefore the educational benefits educational benefits 
arising from critical habitat designation are likely to be minimal.

Benefits of Exclusion--Sprague Ranch

    A considerable benefit from excluding Sprague Ranch from western 
yellow-billed cuckoo critical habitat is the maintenance and 
strengthening of ongoing conservation partnerships. Based on past and 
current efforts to conserve habitat within the South Fork of the Kern 
River including the Sprague Ranch, we have determined that the 
conservation benefits that would be realized by foregoing designation 
of critical habitat for the western yellow-billed cuckoo would be 
significant by encouraging future conservation cooperation from non-
Federal landowners in the area. Actions specifically identified on the 
Sprague Ranch as part of the Audubon Kern River Preserve for 
conservation includes protection and maintenance of riparian and upland 
habitat for breeding feeding and sheltering, active nonnative species 
management, livestock exclusion, exotic vegetation control, native tree 
planting, and species monitoring and reporting. These actions will be 
implemented through the long-term management plan developed by the 
Corps, CDFW and the Audubon Society, who are all committed to working 
toward species recovery. The Audubon Society is taking the lead in 
management of the Kern River Preserve, and its management of this area 
could be constrained and complicated by a checker boarded critical 
habitat designation that would apply to certain lands under Audubon 
management but not all. Accordingly, exclusion would benefit our 
collaboration with Audubon in support of species recovery.
    The western yellow-billed cuckoo occurs on both public and private 
lands throughout the Unit, but the Sprague Ranch is somewhat unique in 
that it is a partnership between the Corps, CDFW, Audubon, and the 
Service. The management of Sprague Ranch is conducted in accordance 
with the terms and conditions of a biological opinion, which requires 
actions for the conservation of western yellow-billed cuckoo habitats. 
These actions would still occur regardless of whether critical habitat 
is designated, but the managing entity (Audubon) may be discouraged 
from implementing voluntary beneficial actions because of the 
additional requirements of the designation.
    Proactive conservation efforts and partnerships with private or 
non-Federal entities are necessary to prevent the extinction and 
promote the recovery of the western yellow-billed cuckoo in the Unit. 
Therefore, western yellow-billed cuckoo habitat located within 
properties covered by management plans or conservation strategies that 
protect or enhance its habitat will benefit substantially from 
voluntary landowner management actions.
    We contend that where consistent with the discretion provided by 
the Act, it is beneficial to implement policies that provide positive 
incentives to private landowners to voluntarily conserve natural 
resources and that remove or reduce disincentives to conservation 
(Wilcove et al. 1996, entire; Bean 2002, pp. 1-7). Thus, it is 
essential for the recovery of the western yellow-billed cuckoo to build 
on continued conservation activities such as these with proven 
partners, and to provide positive incentives for other private 
landowners who might be considering implementing voluntary conservation 
activities but have concerns about incurring incidental regulatory or 
economic impacts.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Sprague Ranch

    Based on the above considerations, we have determined that the 
benefits of excluding the Sprague Ranch from critical habitat in the 
Unit 64 outweigh the benefits of including it as critical habitat for 
the western yellow-billed cuckoo.
    The Sprague Ranch was purchased specifically to manage habitats for 
the western yellow-billed cuckoo and is jointly managed by the Corps, 
CDFW, and Audubon in accordance with the terms and conditions of the 
biological opinions. The strategy of the managing partnership is to 
implement management and habitat improvement measures to achieve 
western yellow-billed cuckoo conservation goals. There are few 
additional educational or regulatory benefits of including these lands 
as critical habitat. The South Fork Kern River as part of the Audubon 
Society's Kern River Preserve is well known by the public and managing 
agencies for its value and importance to the western yellow-billed 
cuckoo. Likewise, there will be little additional Federal regulatory 
benefit to the species because (a) there is a low likelihood that the 
Sprague Ranch will be negatively affected to any significant degree by 
Federal activities that were not consulted on in the existing 
biological opinions pursuant to section 7 consultation requirements, 
and (b) the Sprague Ranch is being managed in accordance with the terms 
and conditions of the biological opinions. Based on ongoing management

[[Page 20889]]

activities, there would likely be no additional requirements pursuant 
to a consultation that addresses critical habitat. Because this piece 
of land was purchased and is being managed specifically for western 
yellow-billed cuckoo habitat, a designation of critical habitat would 
not provide a significant amount of additional benefit.
    The conservation measures for the western yellow-billed cuckoo that 
are occurring or will be used in the future on the Sprague Ranch (i.e., 
demographic surveys, cowbird trapping, nonnative vegetation removal, 
livestock exclusion, hydrologic improvement, planting of native 
vegetation, monitoring, and reporting) provide as many, and likely 
more, overall benefits than would be achieved through implementing 
section 7 consultations on a project-by-project basis under a critical 
habitat designation.
    Therefore, we find that the exclusion of critical habitat on the 
Sprague Ranch would most likely have a net positive conservation effect 
on the recovery and conservation of the western yellow-billed cuckoo 
when compared to the positive conservation effects of a critical 
habitat designation. As described above, the overall benefits to the 
western yellow-billed cuckoo of a critical habitat designation for this 
property are relatively few. In contrast, this exclusion will enhance 
our existing partnership with the Corps, CDFW, and Audubon, and it will 
set a positive example and could provide positive incentives to other 
non-Federal landowners who may be considering implementing voluntary 
conservation activities on their lands. We conclude there is a higher 
likelihood of beneficial conservation activities occurring in this area 
for the western yellow-billed cuckoo without designated critical 
habitat than there would be with designated critical habitat on the 
Sprague Ranch.

Exclusion Will Not Result in Extinction of the Species--Sprague Ranch

    We find that the exclusion of these lands will not lead to the 
extinction of the western yellow-billed cuckoo, nor hinder its recovery 
because long-term land management commitments will ensure the long-term 
persistence and protection of western yellow-billed cuckoo habitat on 
the Sprague Ranch. Exclusion of these lands will not result in the 
extinction of the species because there is a long-term commitment by 
proven land management partners to manage this property specifically 
for the western yellow-billed cuckoo. In addition, as discussed above 
under Effects of Critical Habitat Designation Section 7 Consultation, 
if a Federal action or permitting occurs, the known presence of western 
yellow-billed cuckoos or their habitat would require evaluation under 
the jeopardy standard of section 7 of the Act, even absent the 
designation of critical habitat, and thus will further protect the 
species against extinction. Additionally, the western yellow-billed 
cuckoo occurs on lands adjacent to the Sprague Ranch that are also 
protected and managed either explicitly for the species, or indirectly 
through more general objectives to protect natural habitat values. 
Accordingly, we have determined that 40 ac (16 ha) of the Sprague Ranch 
are excluded under subsection 4(b)(2) of the Act because the benefits 
of excluding these lands from critical habitat for the western yellow-
billed cuckoo outweigh the benefits of their inclusion, and the 
exclusion of these lands from the designation will not result in the 
extinction of the species.
Unit 64 (CA-2) South Fork Kern River Valley--Hafenfeld Ranch
    Hafenfeld Ranch is approximately 247 ac (100 ha) in size and lies 
on and adjacent to the South Fork Kern River. Within the larger ranch 
are two perpetual conservation easements that were placed for the 
purposes of riparian and wetland vegetation protection and western 
yellow-billed cuckoo conservation. The landowner granted these 
easements willingly and in partnership with Department of Agriculture-
Natural Resource Conservation Service (NRCS), the Service, Corps, and 
California Rangeland Trust (CRT). Approximately 127 ac (51 ha) of the 
Hafenfeld Ranch was proposed for designation of western yellow-billed 
cuckoo critical habitat within Unit 64 (CA-2, South Fork Kern River 
Valley).
    The Hafenfeld Ranch is part of a continuous corridor of western 
yellow-billed cuckoo habitat along the South Fork Kern River that 
connects the east and west segments of the Kern River Preserve. The 
dominant vegetation in the Kern Management Unit is willow and 
cottonwood (Populus fremontii). Other plant communities of the Kern 
Management Unit include open water, wet meadow, and riparian uplands. 
Portions of the Hafenfeld Ranch are seasonally flooded, forming a 
mosaic of wetland communities throughout the area. The remainder of the 
property consists of wet meadow and riparian upland habitats, 
consistent with the character of habitat along the South Fork Kern 
River. Western yellow-billed cuckoos have been recorded throughout the 
South Fork Kern River and the Hafenfeld Ranch.
    The first conservation easement of approximately 38 ha (93 ac) was 
recorded in 1996, between the landowner and the NRCS under authority of 
the Wetland Reserve Program. The purpose of the easement is to ``. . . 
restore, protect, manage, maintain, and enhance the functional values 
of wetlands and other lands, and for the conservation of natural values 
including fish and wildlife habitat, water quality improvement, flood 
water retention, groundwater recharge, open space, aesthetic values, 
and environmental education. It is the intent of NRCS to give the 
Landowner the opportunity to participate in restoration and management 
activities in the easement area.''
    The second conservation easement of approximately 57 ha (140 ac) 
was recorded in 2007, between the landowner and CRT as a result of 
biological opinions for the long-term operation of Lake Isabella Dam 
and Reservoir (Service 1996, 2005b) specifically to provide habitat and 
conservation for the western yellow-billed cuckoo. The purposes of the 
easement includes: (1) Protection of the riparian area; (2) 
continuation of flows into the riparian area; and (3) protection of 
riparian habitat. An endowment to implement these purposes was granted 
by the Corps to the National Fish and Wildlife Foundation to be used by 
CRT.
    The Hafenfeld conservation easements are managed pursuant to a 
conservation plan dated January 25, 2005. This plan was prepared in 
partnership with the Service, National Fish and Wildlife Foundation 
(NFWF), CDFW, Wildlife Conservation Board (WCB), the Packard 
Foundation, and Audubon to provide consistent management of lands 
acquired in Unit 64. Management activities under the plan that will 
protect, maintain, and improve western yellow-billed cuckoo habitat 
include: (1) Limiting public access to the site, (2) managing grazing, 
(3) protection of the site from development or encroachment, (4) 
maintenance of the site as permanent open space that has been left 
predominantly in its natural vegetative state, and (5) the spreading of 
flood waters which promotes the moisture regime and wetland and 
riparian vegetation determined to be essential for western yellow-
billed cuckoo conservation. Other prohibitions of the easements which 
would benefit western yellow-billed cuckoo conservation include: (1) 
Haying, mowing or seed harvesting; (2) altering the grassland, 
woodland, wildlife habitat, or other

[[Page 20890]]

natural features; (3) dumping refuse, wastes, sewage, or other debris; 
(4) harvesting wood products; (5) draining, dredging, channeling, 
filling, leveling, pumping, diking, or impounding water features or 
altering the existing surface water drainage or flows naturally 
occurring within the easement area; and (6) building or placing 
structures on the easement. Funding for the implementation of the 
conservation plan is assured by an endowment held by NFWF and through 
commitments by NRCS, CRT, and the Hafenfeld Ranch under provisions of 
the Conservation Easement.

Benefits of Inclusion--Hafenfeld Ranch

    As discussed above under Effects of Critical Habitat Designation 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat. A critical habitat 
designation requires Federal agencies to consult on whether their 
activity would destroy or adversely modify critical habitat to the 
point where recovery could not be achieved. The South Fork Kern River 
is occupied by western yellow-billed cuckoos; therefore, if a Federal 
action or permitting occurs, there is a nexus for evaluation under 
section 7 of the Act due to the species being listed as threatened. 
Through section 7 consultation, some minimal benefit could occur from a 
western yellow-billed cuckoo critical habitat designation at the 
Hafenfeld Ranch. The Hafenfeld Ranch may have additional conservation 
value above sustaining existing western yellow-billed cuckoo 
populations because it is being managed to not only maintain existing 
habitat, but also to improve, protect, and possibly expand upon the 
amount of nesting habitat that would provide for growth of existing 
populations. Expansion of existing populations in these areas would be 
an element of recovering the western yellow-billed cuckoo. However, 
because these lands are privately owned and not under Federal 
management, the occurrence of Federal actions that would generate 
evaluation under section 7 are expected to be limited. Additionally, 
the established conservation easements' goals to restore, protect, and 
manage the functional values for the conservation of fish and wildlife 
habitat are intended to protect riparian vegetation and the western 
yellow-billed cuckoo. As a result, it is not likely that Federal 
actions or the easement holder would allow actions that would diminish 
or reduce the capability of the habitat to support existing 
populations. As a result, any rare Federal action that may result in 
formal consultation will likely result in only discretionary 
conservation recommendations and an adverse modification threshold is 
not likely to be reached. Therefore, there is an extremely low 
probability of mandatory elements (i.e., reasonable and prudent 
alternatives) arising from formal section 7 consultations that include 
consideration of designated western yellow-billed cuckoo critical 
habitat, and as a result, the benefits of inclusion are minimized.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners, 
agencies, tribes, and the public regarding the potential conservation 
value of an area, and may help focus conservation efforts on areas of 
high conservation value for certain species. Any information about the 
western yellow-billed cuckoo that reaches a wide audience, including 
parties engaged in conservation activities, is valuable. The 
designation of critical habitat may also affect the implementation of 
Federal laws, such as the Clean Water Act. These laws analyze the 
potential for projects to significantly affect the environment. 
Critical habitat may signal the presence of sensitive habitat that 
could otherwise be missed in the review process.
    There would be little educational and informational benefit gained 
from including this portion of the South Fork Kern River within the 
designation because the Hafenfeld Ranch-established conservation 
easements that addressed the western yellow-billed cuckoo and its 
habitat, and therefore it is well known as an important area for 
western yellow-billed cuckoo management and recovery. Also, managing 
agencies such as the Corps, NRCS, Service, CRT, and CDFW were involved 
with establishing these easements and development of a long-term 
management plan that addresses western yellow-billed cuckoo habitat; 
therefore the educational benefits or additional support for 
implementing other environment regulations from a critical habitat 
designation are not expected to be realized in this area.

Benefits of Exclusion--Hafenfeld Ranch

    Conservation benefits which are and would be realized by foregoing 
designation of critical habitat for the western yellow-billed cuckoo at 
the Hafenfeld Ranch include: (1) Continuance and strengthening of our 
effective working relationship with the Hafenfeld Ranch and the Corps, 
CRT, and CDFW to promote voluntary, proactive conservation of the 
western yellow-billed cuckoo and its habitat as opposed to reactive 
regulation; (2) allowance for continued meaningful collaboration and 
cooperation in working toward species recovery, including conservation 
benefits that might not otherwise occur; and (3) encouragement of 
additional conservation easements and other conservation and management 
plan development in the future on the Hafenfeld Ranch and other lands 
for the western yellow-billed cuckoo and other federally listed and 
sensitive species.
    The western yellow-billed cuckoo occurs on public and private lands 
throughout Unit 64. Proactive voluntary conservation efforts by private 
or non-Federal entities are necessary to prevent declines and promote 
the recovery of the western yellow-billed cuckoo in Unit 64.
    Therefore, western yellow-billed cuckoo habitat located within 
private properties, like the Hafenfeld Ranch, covered by management 
plans or conservation strategies that protect or enhance its habitat 
will benefit substantially from voluntary landowner management actions. 
Where consistent with the discretion provided by the Act, it is 
beneficial to implement policies that provide positive incentives to 
private landowners to voluntarily conserve natural resources and that 
remove or reduce disincentives to conservation (Wilcove et al. 1996, 
entire; Bean 2002, pp. 1-7). Thus, it is essential for the recovery of 
the western yellow-billed cuckoo to build on continued conservation 
activities such as these with proven partners, like the Hafenfeld 
Ranch, and to provide positive incentives for other private landowners 
who might be considering implementing voluntary conservation activities 
but have concerns about incurring incidental regulatory or economic 
impacts.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Hafenfeld 
Ranch

    Based on the above considerations, we have determined that the 
benefits of excluding the Hafenfeld Ranch from critical habitat in Unit 
64 outweigh the benefits of including it as critical habitat for the 
western yellow-billed cuckoo. The Hafenfeld Ranch is currently 
operating under a conservation plan to implement conservation measures 
and achieve important conservation goals

[[Page 20891]]

through the conservation measures described above, as well as land and 
water management efforts such as willow planting and management of 
surface flows to achieve the optimal flooding regime for the 
enhancement of important riparian and wetland habitat for the western 
yellow-billed cuckoo.
    The additional regulatory and educational benefits of including 
these lands as critical habitat are relatively few. Based on past and 
current conservation actions and continued stewardship of their lands 
by the landowner, we anticipate that the conservation strategies will 
continue to be implemented in the future, and that the funding for 
these activities will be apportioned in accordance with the existing 
management plan.
    Past, present, and future coordination with the landowner has 
provided and will continue to provide sufficient education regarding 
western yellow-billed cuckoo habitat conservation needs on these lands, 
such that there would be minimal additional educational benefit from 
designation of critical habitat. Likewise, there will be little 
additional Federal regulatory benefit to the species because (a) there 
is a low likelihood that the Hafenfeld Parcel will be negatively 
affected to any significant degree by Federal activities requiring 
section 7 consultation, and (b) based on ongoing management activities, 
there would likely be no additional requirements pursuant to a 
consultation that addresses critical habitat. Excluding these privately 
owned lands with conservation strategies from critical habitat may, by 
way of example, provide positive social, legal, and economic incentives 
to other non-Federal landowners who own lands that could contribute to 
listed species recovery if voluntary conservation measures on these 
lands are implemented.
    The conservation measures for the western yellow-billed cuckoo on 
the Hafenfeld Ranch that include the activities described above that 
include land and water management actions to enhance important riparian 
and wetland habitat provide as much, and likely more comprehensive 
benefits as would be achieved through implementing section 7 
consultation on a project-by-project basis under a critical habitat 
designation. This is because the land managers are already implementing 
actions that improve and maintain western yellow-billed cuckoo habitat. 
The actions already being implemented by the landowner serve to manage 
and protect habitat needed for western yellow-billed cuckoo above those 
conservation measures which may be required if the area was designated 
as critical habitat. In making this finding, we have weighed the 
benefits of exclusion against the benefits of including these lands as 
critical habitat.
    Therefore, we find that the exclusion of critical habitat on the 
Hafenfeld Parcel would most likely have a net positive conservation 
effect on the recovery and conservation of the western yellow-billed 
cuckoo when compared to designating the area as critical habitat. As 
described above, the overall benefits to the western yellow-billed 
cuckoo from a critical habitat designation on the Hafenfeld Ranch are 
relatively low.

Exclusion Will Not Result in Extinction of the Species--Hafenfeld Ranch

    Exclusion of these lands will not result in the extinction of the 
subspecies because the western yellow-billed cuckoo occupies the 
Hafenfeld Ranch and the area is being managed for western yellow-billed 
cuckoo conservation. The management on Hafenfeld Ranch is a long-term 
conservation commitment by the landowner to benefit habitat for the 
western yellow-billed cuckoo. As discussed above under Effects of 
Critical Habitat Designation Section 7 Consultation, if a Federal 
action or permitting occurs, the known presence of western yellow-
billed cuckoos or their habitat would require evaluation under the 
jeopardy standard of section 7 of the Act, even absent the designation 
of critical habitat, and thus will protect the species against 
extinction. Accordingly, we have determined that 127 ac (51 ha) of the 
Hafenfeld Ranch lands are excluded under subsection 4(b)(2) of the Act 
because the benefits of excluding these lands from critical habitat for 
the western yellow-billed cuckoo outweigh the benefits of their 
inclusion, and the exclusion of these lands from the designation will 
not result in the extinction of the species.
Unit 68 (CO-1) Colorado River--State of Colorado Parks and Wildlife
    In the revised proposed rule, we indicated that 417 ac (169 ha) of 
state-owned lands in Unit 68 (CO-1) along the Colorado River were being 
considered for exclusion because State of Colorado Parks and Wildlife 
(CPW) manages them to benefit wildlife, including the western yellow-
billed cuckoo. Based on CPW comments and parcel information provided by 
CPW, we adjusted the acreage considered for exclusion to 866 ac (351 
ha). The areas we consider below for exclusion are the multi-parcel 
James M. Robb Colorado River State Park (273 ac (110 ha)), the Leatha 
Jean Stassen State Wildlife Area (24 ac (10 ha)), the Tilman Bishop 
State Wildlife Area (107 ac (43 ha)), and the Walter Walker State 
Wildlife Area (462 ac (187 ha)).
    There are four parcels of the James M. Robb Colorado River State 
Park (CRSP) within critical habitat Unit 68. The Corn Lake section, 6 
ac (2 ha), the Connected Lakes section, 162 ac (66 ha), the Pear Park 
section 105 ac (42 ha), and the 34 Road section that is 0.26 ac (0.1 
ha). The management of the Colorado State Parks is outlined in Colorado 
Parks & Wildlife Strategic Plan (CPW 2005, entire). The primary goals 
of the CRSP are to preserve native communities, reduce noxious weeds, 
maintain desirable shade trees in picnic areas, use a native 
revegetation management prescription, augment nesting structures for 
wildlife, improve aquatic resources, implement a comprehensive natural 
resources monitoring program, and develop and maintain sustainable 
trails. Western yellow-billed cuckoo detections have been documented at 
the Connected Lakes Section in 2002 and at the Corn Lake section in 
1998 (Beason 2012, p 14). Colorado State Parks manages all parcels 
under a 2002 stewardship plan that prescribes a stewardship 
prescription for cottonwood and willow management and noxious weeds 
management (Colorado State Parks 2002, entire).
    The Leatha Jean Stassen, Tilman Bishop, and Walter Walker State 
Wildlife Areas (SWAs) are all protected in perpetuity (owned in fee by 
CPW) and managed under terms stipulated by the Federal Aid in Wildlife 
Restoration Act of 1937 (Pittman-Robertson) and Federal Aid in Sport 
Fish Restoration Act of 1950 (Dingell-Johnson), which prohibit the 
diversion of CPW assets or any funds generated from license sales to 
non-wildlife programs or practices. There are no official management 
plans for the SWAs, yet all management actions (through annual work 
plans) are directed to benefit wildlife and native habitat.
    The primary management objective for the Leatha Jean Stassen SWA is 
to provide quality wildlife habitat. Key activities in pursuit of this 
objective include removal of purple loosestrife (Lythrum salicaria) and 
other herbaceous weeds as well as increasing law enforcement presence 
and trash removal to reduce disturbance from public use. CPW's annual 
work plans also include treating Russian olive, tamarisk, and noxious 
weeds to minimize regrowth. There are no seasonal closures for this 
parcel.
    The Walter Walker SWA is adjacent to the Leatha Jean Stassen SWA on 
the

[[Page 20892]]

west end of Unit 68. The primary management objectives for the Walker 
SWA are to restore natural riparian vegetation and to enhance values 
for rare and sensitive species, non-game wildlife, and waterfowl. The 
annual management activities that support the objectives include 
removal of tamarisk and other nonnative woody riparian plants and 
conduct plantings of cottonwood and willow. Understory vegetation 
management is limited to those activities that enhance or maintain 
wildlife values on the property. There is no livestock grazing on the 
property. Mechanical removal of tamarisk and other nonnative woody 
riparian plants has occurred on the property and will be monitored and 
repeated as necessary. Control of understory weeds is also a regular 
occurrence.
    The Tilman Bishop SWA is on the eastern end of critical habitat 
Unit 68. The primary management objectives for the Tilman Bishop SWA 
are to restore natural riparian vegetation and to enhance habitat 
values for rare and sensitive species, non-game wildlife, and 
waterfowl. Key activities in pursuit of these objectives include 
removal of tamarisk and other nonnative woody riparian plants and 
conduct plantings of cottonwood and willow. Otherwise, the management 
efforts are focused on developing additional and enhancing existing 
riparian vegetation on the property. Actions that implemented annually 
in this SWA that benefit western yellow-billed cuckoo include treating 
nonnative plants such as Russian olive and tamarisk, a public access 
closure period from March 15 through July 15, and mapping of noxious 
weeds.

Benefits of Inclusion--State of Colorado Parks and Wildlife Lands

    The benefits of including lands in critical habitat can be 
regulatory and educational, which can aid in promoting recovery of the 
species. As discussed above under Effects of Critical Habitat 
Designation Section 7 Consultation, Federal agencies, in consultation 
with the Service, must ensure that their actions are not likely to 
jeopardize the continued existence of any listed species or result in 
the destruction or adverse modification of any designated critical 
habitat of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat. A critical habitat 
designation requires Federal agencies to consult on whether their 
activity would destroy or adversely modify critical habitat to the 
point where recovery could not be achieved.
    The most likely Federal nexus for these lands would be associated 
with Federal funding through Partners for Fish and Wildlife, the 
Service, or NRCS for habitat restoration projects, or permitting from 
the Corps if work involves placing fill in riparian or wetland areas. 
Potential outcomes of section 7 consultations (mostly due to the 
species being listed as threatened) would be conservation 
recommendations to avoid disturbance during breeding and nonbreeding 
periods, avoid degradation or destruction of cottonwood stands and 
their understory, and avoid spraying pesticides that could reduce 
insect prey bases for western yellow-billed cuckoo. However, most of 
these recommendations have been identified and implemented in CPW's 
management direction to benefit wildlife and their habitat in the CRSP 
and SWAs, in the absence of critical habitat designation. Therefore, 
conservation recommendations resulting from any section 7 consultation 
with respect to critical habitat would most likely be redundant with 
the conservation actions already in place under current management. 
Thus, few additional regulatory benefits would be derived from 
including the CRSP and SWAs in critical habitat Unit 68 for western 
yellow-billed cuckoo.
    Another important benefit of including lands in a critical habitat 
designation is that it can serve to educate landowners, agencies, 
tribes, and the public regarding the potential conservation value of an 
area, and may help focus conservation efforts on areas of high value 
for certain species. Any information about the western yellow-billed 
cuckoo that reaches a wide audience, including parties engaged in 
conservation, birding, hunting, livestock grazing, recreation, and 
sportfishing activities, is valuable. The designation of critical 
habitat may also affect the implementation of Federal laws, such as the 
Clean Water Act. These laws analyze the potential for projects to 
significantly affect the environment. Critical habitat may signal the 
presence of sensitive habitat that could otherwise be missed in the 
review process for these other environmental laws.
    Designation of critical habitat could inform those who either live 
locally or use the area for recreation about listed species and their 
habitat needs. However, we believe there is little, if any, educational 
benefit attributable to critical habitat beyond those achieved from 
listing the species under the Act. Therefore in this case, we view the 
regulatory benefit to be largely redundant with the benefit the species 
will receives from listing under the Act and may only result in minimal 
additional benefits.

Benefits of Exclusion--State of Colorado Parks and Wildlife Lands

    We have determined that the benefits of exclusion of CPW lands 
outweighs the benefits of inclusion because the CPW is currently 
managing and is committed to maintaining and enhancing aquatic and 
riparian habitats to benefit wildlife and to restore, manage, and 
enhance habitat. The designation of SWA and State Park with 
prescriptions for cottonwood and willow management that promotes a 
healthy cottonwood overstory with grass and shrub understory 
components, sustainable public access, and control of noxious weeds 
demonstrate CPW's commitment to prudent stewardship of their land and 
water resources for the benefit of wildlife, including western yellow-
billed cuckoo. Due to the legal mandates (Pittman-Robertson and 
Dingell-Johnson) to manage the SWAs for the benefit of wildlife and the 
2002 Stewardship Plan for the CRSP, we conclude that it is unlikely 
that any proposed actions would adversely affect or adversely modify 
critical habitat for the western yellow-billed cuckoo. Rather, we can 
reasonably expect these parcels to be protected from future development 
and adaptively managed into the future to avoid and minimize threats to 
the natural habitat included cottonwood galleries and willow 
understories. Therefore, excluding these areas from critical habitat 
could benefit the existing partnership with CPW.
    Due to the consistent management of the CRSP and SWAs for the 
benefit of wildlife, including cottonwood and willow management and 
direction that would not change greatly through section 7 consultation, 
it is unlikely that designating these areas as critical habitat would 
appreciably increase recommended conservation measures. In response to 
the proposed designation of critical habitat, CPW said that designation 
of critical habitat should also consider the existing conservation 
programs available to private landowners and that the designation of 
critical habitat on private lands may discourage landowners from 
pursuing voluntary conservation actions. By excluding these areas we 
can foster more cooperation from adjacent private landowners.

[[Page 20893]]

Benefits of Exclusion Outweigh the Benefits of Inclusion--State of 
Colorado Parks and Wildlife Lands

    We have determined that the benefits of excluding the CRSP, Walter 
Walker SWA, Tilman Bishop SWA, and Leatha Jean Stassen SWA as critical 
habitat for western yellow-billed cuckoo, outweigh the benefits of 
including them as critical habitat. This conclusion is based on the 
following factors: (1) The CRSP has a complete stewardship plan that 
provides guidance and direction for annual activities and land 
management that promote and preserve native riparian vegetation. Due to 
designation as a State Park, it is likely that the conservation 
management strategies and actions will continue to be implemented for 
the foreseeable future. In addition to the goals and objectives set out 
in the stewardship plan for the CRSP, there is also a specific 
cottonwood and willow stewardship prescription that guides management 
actions to reduce nonnative invasive plants and restore natural 
hydrology and regeneration processes within the riparian ecosystem. 
Although the SWAs do not have completed management plans, the annual 
work plans, cottonwood and willow prescription, and wildlife management 
mandate under the Pittman-Robertson and Dingell-Johnson Acts indicate 
sufficient management protections for the physical and biological 
features needed for western yellow-billed cuckoo; and (2) Excluding 
these areas from critical habitat will help maintain and improve our 
partnership with CPW. CPW commented that the designation of critical 
habitat in Unit 68 as proposed (85 FR 11458) would likely have a 
negative impact on ongoing and future voluntary conservation efforts by 
CPW and adjacent private landowners. Designating these areas over the 
objections of CPW could create a disincentive to future partnering with 
the Service to achieve conservation goals, who desire to avoid possible 
Federal regulation under the Act. Given our desire for cooperative 
partnerships and the wildlife habitat protections enacted by the State 
of Colorado on these areas, there is a reasonable expectation that the 
conservation management strategies and actions will continue to be 
implemented into the future.
    Although a critical habitat designation would require actions with 
a Federal nexus to consult on adverse modification, activities 
conducted by CPW may not have a Federal nexus and CPW's management 
already benefits wildlife and their habitat in the CRSP and SWAs, in 
the absence of critical habitat designation. Therefore, conservation 
recommendations resulting from any section 7 consultation with respect 
to critical habitat would most likely be redundant with the 
conservation actions already in place under current management and few 
additional regulatory benefits would be derived from including the CRSP 
and SWAs in critical habitat for the western yellow-billed cuckoo.
    Lastly, these areas are well known as important areas for the 
western yellow-billed cuckoo and past, present, and future coordination 
with CPW has provided and will continue to provide sufficient 
educational benefits regarding conservation of western yellow-billed 
cuckoo habitat on these lands, such that there would be minimal 
additional educational benefit from designation of critical habitat 
beyond those achieved from listing the species under the Act, and CPW's 
continued work in conserving the species.

Exclusion Will Not Result in Extinction of the Species

    We have determined that the exclusion of the CRSP and SWAs lands 
from Unit 68 will not result in the extinction of the western yellow-
billed cuckoo. CPW's mandate to manage SWAs for the benefit of wildlife 
and stewardship plan for the CRSP ensure continued management actions 
that benefit western yellow-billed cuckoo and their habitat. As 
discussed above under Effects of Critical Habitat Designation Section 7 
Consultation, if a Federal action or permitting occurs, the known 
presence of western yellow-billed cuckoos or their habitat would 
require evaluation under the jeopardy standard of section 7 of the Act, 
even absent the designation of critical habitat, and thus will protect 
the species against extinction. It is likely that most actions 
requiring section 7 consultation on these lands would be for actions 
that have a net conservation benefit to improving riparian habitat and 
reducing threats such as nonnative invasive plants. Accordingly, we 
have determined that 866 ac (351 ha) of Colorado Parks and Wildlife 
lands are excluded under subsection 4(b)(2) of the Act because the 
benefits of excluding these lands from critical habitat for the western 
yellow-billed cuckoo outweigh the benefits of their inclusion, and the 
exclusion of these lands from the designation will not result in the 
extinction of the species.
Unit 33 (NM-2) Gila River--U-Bar Ranch
    We identified approximately 1,142 ac (462 ha) in Unit 33 for 
exclusion from the final critical habitat based on habitat management 
by U-Bar Ranch. The U-Bar Ranch (Ranch) near Cliff, in Grant County, 
New Mexico, in the Upper Gila Management Area is owned by Pacific 
Western Land Company (PWLC), a subsidiary of the FMC. Through their 
efforts and their long-time lessee, FMC has demonstrated a commitment 
to management practices on the Ranch that have conserved and benefited 
the western yellow-billed cuckoo population in that area over the past 
decade. In addition, FMC had privately funded scientific research at 
and in the vicinity of the Ranch in order to develop data that have 
contributed to the understanding of habitat selection, distribution, 
prey base, and threats to the southwestern willow flycatcher. The 
riparian habitat also has a large number of nesting western yellow-
billed cuckoos.
    PWLC and the U-Bar Ranch have supported collecting annual breeding 
bird population data for over 20 years, where western yellow-billed 
cuckoo detections have displayed a significant increase since 1997. The 
Ranch began formally surveying for western yellow-billed cuckoos on an 
annual basis beginning in 2014, where results of these surveys and the 
past breeding bird studies indicate that the western yellow-billed 
cuckoo is a common summer resident.
    The Ranch implements a management plan (FMC 2012, entire) on its 
pastures within the Gila Valley that are north of the Highway 180 West 
Bridge and south of the boundary of the Gila National Forest. Eight 
pastures that incorporate approximately 3,390 ac (1,372 ha) are managed 
with a plan that is adapted annually for operation of livestock and 
farming enterprises. The management consists of a multifaceted and 
highly flexible rest-rotation system using both native forage and 
irrigated fields. The Ranch's numerous pastures allow a relatively 
dynamic rotation system that is modified based upon current conditions. 
Grazing use of river bottom pastures is monitored by daily visual 
inspections. Use of these pastures is limited to ensure that forage 
utilization levels are moderate and over-use does not occur. In 
addition, the riparian areas are monitored regularly, and riparian 
vegetation is allowed to propagate along the river as well as in 
irrigation ditches.
    Some specific management practices, varying in different pastures, 
which relate to the western yellow-billed

[[Page 20894]]

cuckoo 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 western yellow-billed cuckoo; (3) restoration 
efforts follow flood events that destroy habitat; and (4) herbicide and 
pesticides are only used in rare circumstances and are not used near 
occupied territories during breeding season. These long practiced 
flexible and adaptive management practices have resulted in the 
expansion, protection, and successful continuance of a large 
southwestern willow flycatcher population, which has ultimately also 
provided benefit to the western yellow-billed cuckoo.
    As an example of long standing successful restoration practices, in 
1995, active restoration followed the flooding destruction of the 
Bennett Farm fields in the 162 ha (400 ac) River Pasture. The Bennett 
Restoration Project is a series of artificially created, flooded marshy 
areas located between irrigated and dry-land pastures and the river. 
The Bennett Restoration Project is a mosaic of vegetation in 
successional stages with dense patches and lines of willows and 
cottonwoods occurring in manmade oxbows. The site now consistently 
supports western yellow-billed cuckoos. The 2016 surveys recorded up to 
7 detections of western yellow-billed cuckoos at the Bennett site.

Benefits of Inclusion--U-Bar Ranch

    As discussed above under Effects of Critical Habitat Designation 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat. A critical habitat 
designation requires Federal agencies to consult on whether their 
activity would destroy or adversely modify critical habitat to the 
point where recovery could not be achieved. As this is private property 
and consultation will be rare, critical habitat is not anticipated to 
have much effect due to lack of Federal actions. Given the anticipated 
lack of section 7 consultation, the dependence on private conservation 
actions is more important.
    Another important benefit of including lands in a critical habitat 
designation is that it can serve to educate landowners, agencies, 
tribes, and the public regarding the potential conservation value of an 
area, and this may focus and contribute to conservation efforts by 
other parties by clearly delineating areas of high conservation value 
for certain species. Any information about the western yellow-billed 
cuckoo and its habitat that reaches a wide audience, including other 
parties engaged in conservation activities, would be considered 
valuable. However, the U-Bar Ranch is already working with the Service 
to address the conservation and recovery of the species. For these 
reasons, designation of critical habitat would have few, if any, 
additional benefits beyond those that will result from continued 
consultation for the presence of the species.

Benefits of Exclusion--U-Bar Ranch

    Significant benefits would be realized by excluding the Ranch that 
include: (1) The continuance and strengthening of our effective 
cooperative relationship with the Ranch to promote the conservation of 
the western yellow-billed cuckoo and its habitat; (2) the allowance for 
continued meaningful collaboration and cooperation in surveys and 
research as we work towards recovery of the species; and (3) the 
provision of conservation benefits to the Gila River ecosystem and the 
western yellow-billed cuckoo and its habitat that might not otherwise 
occur. As mentioned above, the Ranch is an important land manager in 
the Upper Gila River area. The surveys, conservation, restoration and 
management information submitted to the Service by the Ranch document 
that meaningful collaborative and cooperative work for the western 
yellow-billed cuckoo and its habitat will continue on their land. The 
Ranch has committed to several ongoing or future management, 
restoration, enhancement, and survey activities. The results of these 
activities promote long term protection and conserve the western 
yellow-billed cuckoo and its habitat on the Ranch.
    Because so many important areas with western yellow-billed cuckoo 
habitat occur on private lands, collaborative relationships with 
private landowners are important in recovering the species. The western 
yellow-billed cuckoo and its habitat are expected to benefit 
substantially from voluntary landowner management actions that 
implement appropriate and effective conservation strategies. Where 
consistent with the discretion provided by the Act, it is beneficial to 
implement policies that provide positive incentives to private 
landowners to voluntarily conserve natural resources and that remove or 
reduce disincentives to conservation (Wilcove et al. 1996, entire; Bean 
2002, pp. 1-7). Thus, it is important for the western yellow-billed 
cuckoo recovery to build on continued conservation activities such as 
these with a proven partner, and to provide positive incentives for 
other private landowners who might be considering implementing 
voluntary conservation activities, but who have concerns about 
incurring incidental regulatory or economic impacts.
    The benefits of excluding this area from critical habitat will 
encourage the continued conservation, land management, and coordination 
with the Service. If this area is designated as critical habitat, we 
may jeopardize future conservation, research, and information sharing 
for the recovery of the western yellow-billed cuckoo.

Benefits of Exclusion Outweigh the Benefits of Inclusion--U-Bar Ranch

    We have determined that the benefits of exclusion of U-Bar Ranch, 
with the implementation of their management plan, outweighs the 
benefits of inclusion, because the Ranch is currently managing western 
yellow-billed cuckoo and southwestern willow flycatcher breeding sites 
successfully and is committed to maintaining and enhancing habitats to 
benefit wildlife. The benefits of including the Ranch in critical 
habitat are few, and are limited to educational benefits since these 
lands are privately owned and thus one trigger for section 7 
consultation for adverse modification is lacking. The benefits of 
excluding this area from designation as critical habitat for the 
western yellow-billed cuckoo are significant, and include encouraging 
the continuation of adaptive management measures such as monitoring, 
surveys, research, enhancement, and restoration activities that the 
Ranch currently implements and plans for the future. The exclusion of 
this area will likely also provide additional benefits to the species 
by encouraging and maintaining a cooperative working relationship with 
the Ranch.
    Through their and their long-time lessee's efforts, FMC has 
demonstrated a commitment to management practices on the Ranch that 
have conserved and benefited the western yellow-billed cuckoo 
population in that area over the past decade. In addition, FMC had 
privately funded scientific research at and in the vicinity of the 
Ranch in order to develop data that has contributed to the 
understanding of habitat selection and distribution of the western 
yellow-billed cuckoo. Considering the past and

[[Page 20895]]

ongoing efforts of management and research to benefit the western 
yellow-billed cuckoo, done in coordination and cooperation with the 
Service, we find the benefits of excluding areas of the U-Bar Ranch 
outweigh the benefits of including it in critical habitat.

Exclusion Will Not Result in Extinction of the Species--U-Bar Ranch

    We have determined that exclusion of areas of the Ranch will not 
result in extinction of the species, nor hinder its recovery because 
FMC management will ensure the long-term persistence and protection of 
western yellow-billed cuckoo habitat at the Ranch and because the Ranch 
is committed to greater conservation measures on their land than would 
be available through the designation of critical habitat. In addition, 
as discussed above under Effects of Critical Habitat Designation 
Section 7 Consultation, if a Federal action or permitting occurs, the 
known presence of western yellow-billed cuckoos or their habitat would 
require evaluation under the jeopardy standard of section 7 of the Act, 
even absent the designation of critical habitat, and thus will protect 
the species against extinction. Accordingly, we have determined that 
approximately 1,142 ac (462 ha) of land within Unit 33: NM-2 Gila River 
owned by the U-Bar Ranch are excluded under subsection 4(b)(2) of the 
Act because the benefits of exclusion outweigh the benefits of 
inclusion and will not cause the extinction of the species.
Unit 40 (NM-9) Animas--Ladder Ranch, NM
    In the revised proposed rule we identified the entire 608 ac (246 
ha) of private land for exclusion in Unit 40 (NM-9) along Las Animas 
Creek owned by the Turner Ranch Properties. The Ladder Ranch (Ranch) is 
located near Truth or Consequences in Sierra County, New Mexico. The 
Nature Conservancy is a Conservation Guardian of the Turner 
Conservation Trust (which includes the Ladder Ranch). The Turner 
Conservation Trust has a goal of demonstrating how private lands can be 
innovatively managed to allow conservation and commerce to co-exist to 
sustain the natural diversity of the landscape. The Ranch has committed 
to management, protections of habitat, water availability, and survey 
activities according to the Trust Agreement with the Nature Conservancy 
and has demonstrated a commitment to conservation of the western 
yellow-billed cuckoo by completing formal presence/absence surveys for 
the species in 2016 and the management techniques described below. From 
the 2016 baseline study as well as from incidental observations, the 
riparian habitat provides refuge to western yellow-billed cuckoos 
suspected of nesting on the property.
    The Ranch is managed as a working landscape, supporting bison 
ranching, commercial and recreational hunting, ecotourism, conservation 
and restoration projects, and scientific research. While these 
activities have been ongoing, listed or sensitive species such as the 
western yellow-billed cuckoo, the Chiricahua leopard frog (Rana 
chiricahuensis), Rio Grande chub (Gila Pandora), Rio Grande sucker 
(Catostomus plebeius) and black-tailed prairie dogs (Cynomys 
ludovicianus arizonensis) have all coexisted on the property. Examples 
of conservation pertaining to these sensitive species include pumping 
water to support Chiricahua leopard frog habitat and captive breeding/
rearing of the species. Monitoring Rio Grande chub and Rio Grande 
sucker habitat, surveying the species, and translocating when 
appropriate are also examples of conservation. In order to protect 
sensitive species such as the western yellow-billed cuckoo and others 
located on the Ranch, the Ranch has constructed fencing and monitored 
browsing activity and provided supplemental feed and water when 
necessary to move bison away from sensitive areas and protect habitats. 
Considering the past and ongoing efforts of management and research to 
benefit the western yellow-billed cuckoo as well as other listed or 
sensitive species within the Ranch, we find the benefits of excluding 
the Ranch outweigh the benefits of including it in critical habitat.

Benefits of Inclusion--Ladder Ranch

    As discussed above under Effects of Critical Habitat Designation 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat. A critical habitat 
designation requires Federal agencies to consult on whether their 
activity would destroy or adversely modify critical habitat to the 
point where recovery could not be achieved. Since the western yellow-
billed cuckoo was listed in 2014, there has been one formal 
consultation that overlapped with the property and was associated with 
the Copper Flat Mine and one informal consultation that resulted in 
concurrence of a ``not likely to adversely affect'' determination. 
Since the area is on private property, we expect that future 
consultations will also be rare and that critical habitat is not 
anticipated to have much effect due to lack of Federal actions. Given 
the anticipated lack of section 7 consultation, the dependence on 
private conservation actions is more important.
    Another possible benefit is that the designation of critical 
habitat can serve to educate the public regarding the potential 
conservation value of an area, and this may focus and contribute to 
conservation efforts by other parties by clearly delineating areas of 
high conservation value for certain species. Any information about the 
western yellow-billed cuckoo and its habitat that reaches a wide 
audience, including other parties engaged in conservation activities, 
would be considered valuable. However, the Ranch is already working 
with the Service and The Nature Conservancy to address the conservation 
and recovery of the species.
    Based on this history of conservation and management practices, we 
have determined that designation of critical habitat would have few, if 
any, additional benefits beyond those that would result from the 
species being listed as threatened.

Benefits of Exclusion--Ladder Ranch

    We have determined that significant benefits would be realized by 
excluding the Ranch that include: (1) The continuance and strengthening 
of our cooperative relationship with the Ranch to promote the 
conservation of the western yellow-billed cuckoo and its habitat; (2) 
the allowance for continued meaningful collaboration and cooperation in 
surveys and research as we work towards recovery of the species; and 
(3) the provision of conservation benefits to the Las Animas Creek 
ecosystem and the western yellow-billed cuckoo and its habitat that 
might not otherwise occur. The Ranch is an important land manager in 
the Las Animas Creek, a tributary to the Rio Grande. The surveys, 
conservation, restoration and management information submitted by the 
Ranch document that meaningful collaborative and cooperative work for 
the western yellow-billed cuckoo and other listed or sensitive species 
and their habitat will continue on their land. Through their Trust 
Agreement with The Nature Conservancy, the Ranch has committed to 
future management, protections of

[[Page 20896]]

habitat and water availability, and survey activities. We have 
determined that the results of these activities promote long term 
protection and conserve the western yellow-billed cuckoo and its 
habitat on the Ranch. The benefits of excluding this area from critical 
habitat will encourage the continued conservation, land management, and 
coordination with the Service by granting the Ranch's request for 
exclusion and acknowledging their history of conservation for the 
species.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Ladder Ranch

    We have determined that the benefits of exclusion of Ladder Ranch, 
with the implementation of actions for conservation of western yellow-
billed cuckoo habitat, outweighs the benefits of inclusion. The 
benefits of including the Ranch in critical habitat are low, and are 
limited to educational benefits since these lands are privately owned 
and the trigger for section 7 consultation for adverse modification of 
habitat due to critical habitat is lacking. Past, present, and future 
coordination with the landowner has provided and will continue to 
provide sufficient educational benefits regarding western yellow-billed 
cuckoo habitat and conservation needs on these lands, such that there 
would be minimal additional educational benefit from designation of 
critical habitat. The benefits of excluding this area from designation 
as critical habitat for the western yellow-billed cuckoo are 
significant, and include encouraging the continuation of adaptive 
management measures such as monitoring, surveys, research, enhancement, 
and habitat protection that the Ranch currently implements and plans 
for the future. The exclusion of this area will likely also provide 
additional benefits to the species by encouraging and maintaining a 
cooperative working relationship with the Ranch. We find that the 
benefits of excluding this area from critical habitat designation 
outweigh the benefits of including this area.

Exclusion Will Not Result in Extinction of the Species--Ladder Ranch

    We have determined that exclusion of areas of the Ranch will not 
result in extinction of the species, nor hinder its recovery because 
management by The Nature Conservancy and Turner Ranch Properties will 
ensure the long-term persistence and protection of western yellow-
billed cuckoo habitat at the Ranch, and because the Ranch is committed 
to greater conservation measures on their land than would be available 
through the designation of critical habitat. In addition, as discussed 
above under Effects of Critical Habitat Designation Section 7 
Consultation, if a Federal action or permitting occurs, the known 
presence of western yellow-billed cuckoos or their habitat would 
require evaluation under the jeopardy standard of section 7 of the Act, 
even absent the designation of critical habitat, and thus will protect 
the species against extinction. Accordingly, we have determined 
approximately 608 ac (246 ha) of land within Unit 40 (NM-9) Animas 
owned by Turner Ranch Properties should be excluded under subsection 
4(b)(2) of the Act because the benefits of exclusion outweigh the 
benefits of inclusion and will not cause the extinction of the species.
Unit 41 (NM-10) Selden Canyon and Radium Springs
    In New Mexico, along the lower Rio Grande south of Caballo 
Reservoir, the Elephant Butte Irrigation District (EBID) and the El 
Paso County Water Improvement District No. 1 (EPWD) manages the water 
from the Rio Grande in Elephant Butte Reservoir for agricultural use, 
and the International Boundary and Water Commission (IBWC) (a Federal 
Agency) is responsible for maintaining levees and channel irrigation 
facilities, and floodway management. The entire approximately 237 ac 
(96 ha) of Selden Canyon and Radium Springs Unit 41 has been identified 
for exclusion from critical habitat. Together, the EBID, EPWD, and IBWC 
have planned and implemented a large-scale riparian habitat improvement 
project along the lower Rio Grande from Percha Dam to American Dam 
(termed the lower Rio Grande Elephant Butte Irrigation District 
Canalization and Conservation Project).
    The lower Rio Grande south of Caballo Reservoir is managed by the 
IBWC, whose mission is to provide bi-national solutions to issues that 
arise during the application of United States--Mexico treaties 
regarding boundary demarcation, national ownership of waters, 
sanitation, water quality, and flood control in the border region. 
Water deliveries to downstream water users for irrigation and other 
purposes are managed by EBID which operates, maintains, and owns the 
irrigation distribution system. This irrigation distribution system was 
constructed by Reclamation and includes canals, laterals, drains, 
waste-ways, and maintenance roads on both riverbanks, and structures. 
State statutes provide for the equitable distribution of water from the 
Elephant Butte Reservoir to all of its water users and generally govern 
how EBID operates and manages the water it provides to its users.
    Prior to the listing of the western yellow-billed cuckoo, IBWC's 
management of the lower Rio Grande emphasized canalization to 
facilitate efficient water deliveries and flood control. As a result, 
the channel narrowed and degraded, with limited areas for overbank 
flooding to support expansive native riparian communities. The vast 
majority of floodplains, which would have formerly supported native 
riparian vegetation, including some western yellow-billed cuckoo 
habitat, are now subject to substantial human impacts by agriculture, 
urbanization, recreation, vegetation encroachment and management, 
grazing, fire, and other stressors. IBWC has worked for ten years to 
develop habitat restoration areas under a 2009 Record of Decision. From 
2009 to 2019, IBWC planted approximately 123,000 trees and shrubs on 
more than 500 ac (202 ha) of restoration sites, with about 100 ac (40 
ha) targeting the creation of native canopy woodland habitat that will 
eventually be beneficial to the western yellow-billed cuckoo and 
developed a River Management Plan in 2014 (IBWC 2014, entire). 
Additionally, the practice of mowing willow trees has been ceased, 
which has already added to the distribution and abundance of riparian 
vegetation. Plus, western yellow-billed cuckoo surveys have and will 
continue to occur, as will vegetation monitoring.
    In 2016, IBWC updated their River Management Plan to incorporate 
the western yellow-billed cuckoo (IBWC 2016, entire) and includes 
conservation measures such as avoidance areas around western yellow-
billed cuckoo observations, formal surveys to be completed on an annual 
basis, and restoration features to target western yellow-billed cuckoo 
habitat suitability. Measures to protect the western yellow-billed 
cuckoo as well as habitat restoration sites targeting potential cuckoo 
habitat are included in the updated River Management Plan. The goal is 
to provide western yellow-billed cuckoo habitat in the lower Rio 
Grande, while still delivering water, as required by IBWC and EBID. The 
concerted effort by multiple agencies and groups to improve habitat in 
this reach of the Rio Grande has already provided habitat benefits to 
the southwestern willow flycatcher and are expected to provide benefit 
to the western yellow-billed cuckoo as well. EBID and EPWD have 
voluntarily worked with NFWF to develop a water transaction program 
that will allow IBWC and other partners to purchase or lease water that 
can be used to flood riparian habitat similar to

[[Page 20897]]

an agricultural crop. The participation by EBID is crucial to the 
continued habitat improvement of this river reach for the benefit of 
the western yellow-billed cuckoo. The number of estimated western 
yellow-billed cuckoo territories detected annually in this unit from 
2014 to 2019 ranged from 2 to 7 (Reclamation 2019, p. 46).

Benefits of Inclusion--Canalization and Conservation Project, NM

    As discussed above under Effects of Critical Habitat Designation 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat. A critical habitat 
designation requires Federal agencies to consult on whether their 
activity would destroy or adversely modify critical habitat to the 
point where recovery could not be achieved.
    There may be some benefits from the designation of critical habitat 
along the lower Rio Grande, primarily because it would require Federal 
agencies to perform additional review of their project implementation. 
While this area was not previously designated as western yellow-billed 
cuckoo critical habitat, the IBWC has already undergone section 7 
consultation due to the occurrence of southwestern willow flycatchers 
and western yellow-billed cuckoos along the lower Rio Grande. With the 
implementation of the western yellow-billed cuckoo conservation actions 
included in the Canalization and Conservation Project, which are 
expected to avoid the species in construction activities and result in 
more breeding habitat and territories, we provided concurrence to 
IBWC's determination that their actions would not likely to adversely 
affect the western yellow-billed cuckoo (Service 2017, pp. 1-2). Any 
future Federal projects implemented by other agencies with 
responsibilities along the lower Rio Grande, such as Federal Highway 
Administration, or from the BLM on surrounding lands, would require 
evaluation under section 7 of the Act. However, because western yellow-
billed cuckoos occur along the lower Rio Grande during the breeding 
season, exhibit a certain amount of site fidelity and their habitat is 
protected due to the long-term and extensive western yellow-billed 
cuckoo habitat conservation benefits resulting from the EBID's 
Canalization and Conservation Project, the incremental benefits of 
designating critical habitat at Selden Canyon and Radium Springs are 
minimized.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners, 
agencies, tribes, and the public regarding the potential conservation 
value of an area, and may help focus conservation efforts on areas of 
high conservation value for certain species. Any information about the 
western yellow-billed cuckoo that reaches a wide audience, including 
parties engaged in conservation activities, is valuable. The 
designation of critical habitat may also inform implementation of other 
Federal laws, such as NEPA or the Clean Water Act. These laws analyze 
the potential for projects to significantly affect the environment. 
Critical habitat may signal the presence of sensitive habitat that 
could otherwise be missed in the review process for these other 
environmental laws.
    We have determined that there would be little, if any educational 
and informational benefit gained from including the lower Rio Grande 
within the designation because this area is well known as an important 
area for western yellow-billed cuckoo management and recovery. For 
example, Federal agencies and stakeholders integral to water and land 
management along the lower Rio Grande are involved in conducting 
western yellow-billed cuckoo surveys, initiated section 7 consultation, 
and have planned and are implementing western yellow-billed cuckoo 
conservation actions. Consequently, we have determined that the 
informational benefits and support for implementing other environment 
regulations have already occurred through past actions even in the 
absence of critical habitat.

Benefits of Exclusion--Canalization and Conservation Project, NM

    The benefits of excluding the lower Rio Grande at Selden Canyon and 
Radium Springs from designated critical habitat include: (1) Continued 
and strengthened effective working relationships with IBWC, EBID, 
Audubon, and other stakeholders and partners; (2) meaningful 
collaboration toward western yellow-billed cuckoo recovery, including; 
(3) the development of a water transaction program that provides 
irrigation water to restoration sites that might not otherwise occur 
and that are expected to provide benefit to western yellow-billed 
cuckoos. EBID and constituents are concerned of the impacts of a 
critical habitat designation on their abilities to manage their water 
rights, as stated in their comments on the revised proposed rule (see 
Summary of Comments and Recommendations). Through fostering a 
cooperative working relationship with EBID, IBWC and others conducting 
surveys and habitat monitoring, and undertaking habitat restoration and 
enhancement projects are realizing western yellow-billed cuckoo 
conservation benefits. Without EBID's support in carrying out these 
restoration efforts and implementing the water transaction program, 
significant conservation benefits to the western yellow-billed cuckoo 
could be lost. For these reasons, we have determined that fostering our 
working relationship with EBID and their constituents is important to 
maintain western yellow-billed cuckoo conservation benefits.
    Proactive voluntary conservation efforts have and will continue to 
be important to achieve western yellow-billed cuckoo recovery. As the 
water manager for the lower Rio Grande, EBID's willingness to 
participate and coordinate the water transaction program is crucial to 
creating successful western yellow-billed cuckoo restoration sites. 
Their agreement to work with IBWC, NFWF, and others demonstrates that 
meaningful, collaborative, and cooperative work for the western yellow-
billed cuckoo and its habitat will continue within their jurisdiction. 
Therefore, we have determined that the results of these voluntary 
restoration activities will promote long-term protection and conserve 
the western yellow-billed cuckoo and its habitat within the lower Rio 
Grande. The benefits of excluding this area from critical habitat will 
encourage the continued cooperation and development of the water 
transaction program which will allow IBWC to provide water to the 
habitat restoration sites.
    Excluding the lower Rio Grande from the critical habitat 
designation that are within the jurisdiction of IBWC will provide 
significant benefits to the western yellow-billed cuckoo through 
sustaining and enhancing the working relationship between the Service, 
IBWC, EBID, and other stakeholders. The willingness of IBWC and EBID to 
work with the Service on innovative ways to manage and develop western 
yellow-billed cuckoo habitat will reinforce our partnership that is 
important in order to achieve western yellow-billed cuckoo recovery. We 
can often achieve greater conservation through voluntary actions than 
through implementing a critical habitat regulation on a project-by-
project basis.

[[Page 20898]]

    By excluding the Rio Grande south of Caballo Dam in New Mexico from 
critical habitat designation, we are also encouraging new partnerships 
with other landowners and jurisdictions to protect the western yellow-
billed cuckoo and other listed or sensitive species. We consider this 
voluntary partnership in conservation vital to our understanding of the 
status of species on non-Federal lands and necessary for us to 
implement recovery actions such as habitat protection and restoration, 
and beneficial management actions for species.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Canalization 
and Conservation Project, NM

    We have reviewed and evaluated the lower Rio Grande at Selden 
Canyon and Radium Springs, and have concluded that the benefits of 
exclusion under section 4(b)(2) of the Act outweigh the benefits of 
including these areas as western yellow-billed cuckoo critical habitat. 
The incremental regulatory benefits of including these lands within the 
critical habitat designation are minimized because the regulatory, 
educational, and ancillary benefits that would result from critical 
habitat designation are similar to the benefits already afforded 
through the IBWC 2016 River Management Plan and protections associated 
with the listing of the western yellow-billed cuckoo. In addition, the 
2017 Biological Assessment associated with IBWC's Long-Term River 
Management of the Rio Grande Canalization Project (IBWC 2017, entire) 
commits to not removing any nesting habitat for western yellow-billed 
cuckoos or otherwise causing displacement of the species. The 
implementation of IBWC collaborative conservation project provides for 
significant conservation, management, improvement, and protection of 
habitat for western yellow-billed cuckoo conservation.
    The Service has created close partnerships through the development 
of IBWC's restoration plan, which incorporates protections and 
management objectives for the western yellow-billed cuckoo and the 
habitat upon which it depends for breeding, sheltering, and foraging 
activities. The conservation strategy identified in IBWC's 2016 River 
Management Plan, along with our close coordination with IBWC, EBID and 
other partners, addresses the identified threats to western yellow-
billed cuckoos and its habitat. These actions serve to manage and 
protect habitat needed for western yellow-billed cuckoo above those 
conservation measures which may be required if the area was designated 
as critical habitat.
    Exclusion of these lands from critical habitat will help preserve 
the partnerships we have developed with local jurisdictions and project 
proponents through the development and ongoing implementation of their 
conservation plan. These partnerships are focused on western yellow-
billed cuckoo conservation and securing conservation benefits that will 
lead to recovery. Because we now have a consistent western yellow-
billed cuckoo population along the lower Rio Grande, we are relying on 
the conservation efforts of the many stakeholders to create, manage, 
and maintain western yellow-billed cuckoo habitat. We expect that the 
results of implementing these western yellow-billed cuckoo conservation 
actions will generate benefits beyond those that could be achieved from 
project-by-project evaluation through a critical habitat designation. 
The conservation gains to the western yellow-billed cuckoo identified 
south of Caballo Dam are more beneficial than designation of critical 
habitat because of the development of the water transaction program. 
Our partnership, along with the 2017 biological opinion for IBWC's 
canalization project and restoration sites [which includes the 2016 
River Management Plan (updated to incorporate the western yellow-billed 
cuckoo in 2018) and the water transaction program], ensure 
implementation of the protections and management actions identified 
within their plan. Therefore, the relative benefits of excluding 
critical habitat on these lands are substantial and outweigh the 
benefits of including the area as critical habitat.
    We have determined that the additional regulatory benefits of 
designating occupied areas as western yellow-billed cuckoo critical 
habitat, such as protection afforded through the section 7(a)(2) 
consultation process, are minimal. Furthermore, the conservation 
objectives identified by the IBWC Plan, in conjunction with our 
partnership with the EBID and others will provide a greater benefit to 
the species than critical habitat designation. We also conclude that 
the educational and ancillary benefits of designating critical habitat 
for the western yellow-billed cuckoo at Selden Canyon and Radium 
Springs would be negligible because of the partnership established 
between the Service and IBWC, and the management objectives identified 
in the biological assessment and biological opinion. Therefore, in 
consideration of the relevant impact to current and future 
partnerships, as summarized in the Benefits of Exclusion section above, 
we determined the significant benefits of exclusion outweigh the 
benefits of critical habitat designation.

Exclusion Will Not Result in Extinction of the Species--Canalization 
and Conservation Project, NM

    We determine that the exclusion of the lower Rio Grande at Selden 
Canyon and Radium Springs from the designation of critical habitat for 
the western yellow-billed cuckoo will not result in extinction of the 
species because current conservation efforts under IBWC's River 
Management Plan adequately protect the geographical areas containing 
the physical or biological features essential to western yellow-billed 
cuckoo conservation. As discussed above under Effects of Critical 
Habitat Designation Section 7 Consultation, if a Federal action or 
permitting occurs, the known presence of western yellow-billed cuckoos 
or their habitat would require evaluation under the jeopardy standard 
of section 7 of the Act, even absent the designation of critical 
habitat, and thus will protect the species against extinction. In our 
Biological Opinion, the Service provided concurrence that 
implementation of the IBWC Canalization and Conservation Project and 
associated restoration plans was not likely to adversely affect the 
species (Service 2017, pp. 1-2), and is likely to benefit the species. 
Therefore, based on the benefits described above, we have determined 
that this exclusion would not result in the extinction of the western 
yellow-billed cuckoo, and are excluding the entire 237 ac (96 ha) of 
the lower Rio Grande at Selden Canyon and Radium Springs from this 
final critical habitat designation.

Private or Other Non-Federal Conservation Plans Related to Permits 
Under Section 10 of the Act

    HCPs for incidental take permits under section 10(a)(1)(B) of the 
Act provide for partnerships with non-Federal entities to minimize and 
mitigate impacts to listed species and their habitat. In some cases, 
HCP permittees agree to do more for the conservation of the species and 
their habitats on private lands than designation of critical habitat 
would provide alone. We place great value on the partnerships that are 
developed during the preparation and implementation of HCPs.
    CCAAs and SHAs are voluntary agreements designed to conserve 
candidate and listed species, respectively, on non-Federal lands. In

[[Page 20899]]

exchange for actions that contribute to the conservation of species on 
non-Federal lands, participating property owners are covered by an 
``enhancement of survival'' permit under section 10(a)(1)(A) of the 
Act, which authorizes incidental take of the covered species that may 
result from implementation of conservation actions, specific land uses, 
and, in the case of SHAs, the option to return to a baseline condition 
under the agreements. The Service also provides enrollees assurances 
that we will not impose further land-, water-, or resource-use 
restrictions, or require additional commitments of land, water, or 
finances, beyond those agreed to in the agreements.
    When we undertake a discretionary section 4(b)(2) exclusion 
analysis, we will always consider areas covered by an approved CCAA/
SHA/HCP, and generally exclude such areas from a designation of 
critical habitat if three conditions are met:
    (1) The permittee is properly implementing the CCAA/SHA/HCP and is 
expected to continue to do so for the term of the agreement. A CCAA/
SHA/HCP is properly implemented if the permittee is, and has been, 
fully implementing the commitments and provisions in the CCAA/SHA/HCP, 
implementing agreement, and permit.
    (2) The species for which critical habitat is being designated is a 
covered species in the CCAA/SHA/HCP, or very similar in its habitat 
requirements to a covered species. The recognition that the Services 
extend to such an agreement depends on the degree to which the 
conservation measures undertaken in the CCAA/SHA/HCP would also protect 
the habitat features of the similar species.
    (3) The CCAA/SHA/HCP specifically addresses the habitat of the 
species for which critical habitat is being designated and meets the 
conservation needs of the species in the planning area.
    We have determined that the plans, HCPs, or Agreements identified 
in Table 3, fulfill the above criteria, and we are excluding the non-
Federal lands covered by these plans that provide for the conservation 
of western yellow-billed cuckoo.
Unit 1 (CA/AZ-1) Colorado River 1 and Unit 2 (CA/AZ-2) Colorado River 2 
and Unit 3 (AZ-1) Bill Williams River--Lower Colorado River Multi-
Species Conservation Program (LCR MSCP)
    The Lower Colorado River Multi-Species Conservation Program HCP 
(2004, entire) was developed for areas along the lower Colorado River 
along the borders of Arizona, California, and Nevada from 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. In 1995, U.S. Department of the Interior 
agencies; water, power, and wildlife resources agencies from Arizona, 
California, and Nevada; Native American tribes; environmental 
interests; and recreational interests agreed to form a partnership to 
develop and implement a long-term endangered species compliance and 
management program for the historical floodplain of the lower Colorado 
River. The goal was to facilitate the development of an ecosystem-based 
HCP and coordination with the various LCR MSCP Federal partners. 
Reclamation has taken lead for coordinating activities under the LCR 
MSCP.
    A Steering Committee provides oversight to Reclamation's LCR MSCP 
Program Manager, operating under a Funding and Management Agreement 
that was prepared among Federal, State, local, and tribal party 
participants (LCR MSCP 2007, p. 1-3). The potentially affected parties 
and other interested parties established a public process for 
developing the required documents and plans. Various public agencies 
and other non-governmental groups have participated in developing the 
various components of the LCR MSCP. 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. An important catalyst of 
the effort was a 1997 jeopardy biological opinion for the southwestern 
willow flycatcher issued to Reclamation for lower Colorado River 
operations (Service 2005a, entire). The Federal agencies involved in 
the LCR MSCP include Reclamation, Bureau of Indian Affairs (BIA), NPS, 
BLM, WAPA, and the Service. Native American Tribes involved in the LCR 
MSCP and owning lands within the planning area include the Colorado 
River Indians Tribes, Fort Mohave Tribe, Cocopah Tribe, Chemehuevi 
Tribe, and Fort Yuma (Quechan) Tribe.
    The LCR MSCP planning area primarily surrounds proposed western 
yellow-billed cuckoo critical habitat along the lower Colorado River 
from Lake Mead to the southerly international border. Portions of the 
Colorado River, Lake Mead, Virgin River, and Muddy River in Arizona, 
Utah, and Nevada are included 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 occurs within the LCR 
MSCP planning area. The LCR MSCP permittees will create and maintain 
4,050 ac (1,639 ha) of western yellow-billed cuckoo habitat, reduce the 
risk of loss of created habitat to wildfire, replace created habitat 
affected by wildfire, and avoid and minimize operational and management 
impacts to western yellow-billed cuckoos over the 50-year life of the 
permit (2005 to 2055) (Lower Colorado River Multi-Species Conservation 
Program 2004, pp. 5-30-5-36, Table 5-10, 5-58-5-60). Additional 
research, management, monitoring, and protection of western yellow-
billed cuckoos will occur. In addition to western yellow-billed cuckoo 
habitat creation and subsequent management, the LCR MSCP provides funds 
to ensure existing western yellow-billed cuckoo habitat is maintained. 
Western yellow-billed cuckoo management associated with the LCR MSCP is 
conducted in conjunction and coordinated with management occurring on 
the National Wildlife Refuges (Bill Williams, Havasu, Cibola, and 
Imperial) and Tribal lands (Colorado River Indians Tribes, Fort Mohave 
Tribe, Cocopah Tribe, Chemehuevi Tribe, and Fort Yuma (Quechan) Tribe) 
along the LCR and within the LCR MSCP planning area.
    On the lower Colorado River and Bill Williams River, we identified 
77,726 ac (31,468 ha) of proposed critical habitat for exclusion within 
the LCR MSCP planning area and off-site conservation areas of La Paz, 
Mohave, and Yuma Counties in Arizona; and Imperial, Riverside, and San 
Bernardino Counties in California. Western yellow-billed cuckoo 
management within the proposed Units in the LCR MSCP planning area is 
occurring on National Wildlife Refuges (Bill Williams, Havasu, Cibola, 
and Imperial) and Tribal lands (Colorado River Indian Tribes, Fort Yuma 
(Quechan) Tribe, Cocopah Tribe, and Fort Mojave Tribe). During the 
breeding season the area is considered to have been occupied at the 
time of listing and is currently occupied.
    Reclamation has provided protection and benefits to this species 
since 2005 and conducts annual monitoring of the species. Reclamation 
requested excluding habitat within the entire 914,200 ac (369,964 ha) 
LCR MSCP planning area and off-site conservation areas (LCR MSCP 
implementation area) from critical habitat under the rationale that 
conservation measures described in the LCR MSCP Habitat Conservation 
Plan provide protection and benefits to the yellow-billed cuckoo and 
its habitat

[[Page 20900]]

(LCRMSCP 2004, pp. 1-506; Reclamation 2020a, p. 2). Because the entire 
914,200 ac (369,964 ha) implementation area was not proposed as 
critical habitat, we are only analyzing exclusion of the areas proposed 
as critical habitat.
    Conservation and development of western yellow-billed cuckoo and 
southwestern willow flycatcher habitat is a priority for all the 
Federal, State, Tribal, and private land managers within the LCR MSCP 
planning area. In particular, the Bill Williams River, Havasu, Cibola, 
and Imperial NWRs and Fort Mohave, Colorado River Indian Tribe, and 
Quechan Tribes are implementing conservation strategies to manage and 
enhance riparian resources along the Colorado River. Reclamation, in 
its lead role as Program Manager for the LCR MSCP, requested exclusion 
for areas proposed as critical habitat within the LCR MSCP boundary. 
Information regarding their specific activities and management on their 
lands is identified in our supporting information (Service 2020b, 
entire).

Benefits of Inclusion--Lower Colorado River Multi-Species Conservation 
Plan (LCR MSCP)

    As discussed above under Effects of Critical Habitat Designation 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat. A critical habitat 
designation requires Federal agencies to consult on whether their 
activity would destroy or adversely modify critical habitat to the 
point where recovery could not be achieved. The areas within the LCR 
MSCP planning area are occupied by western yellow-billed cuckoos and 
have undergone section 7 consultation. There may be some minor benefits 
from the designation of critical habitat along the length of the LCR 
for land management actions because of the additional review required 
by Federal actions; most likely those occurring on Service NWRs, BLM, 
and NPS land. The western yellow-billed cuckoo and southwestern willow 
flycatcher are well known as a listed species using the LCR for 
migration and for nesting. Because these Federal agencies manage open 
space for public use and wildlife, the types of actions evaluated would 
mostly be associated with recreation, hunting, habitat management, and 
public access, and possibly some land resource use.
    The benefits of western yellow-billed cuckoo critical habitat 
designation on lands managed by Federal partners within the LCR MSCP 
planning area are limited. Reclamation manages lower Colorado River 
water storage, river regulation, and channel maintenance such that the 
river stays within its incised channel and can no longer flow onto the 
adjacent floodplain. As a result, Reclamation has no discretion to 
change these water management actions to allow a better functioning 
stream to improve the riparian forest. Improving the duration, 
magnitude, and timing of river flow would generate overbank flooding, 
create and recycle riparian habitat, and, therefore, improve the 
quality and abundance of western yellow-billed cuckoo habitat. Because 
of the lack of flooding and the prevention of overbank flows, the 
floodplain can no longer support the pre-dam riparian forest.
    While land managers (BLM, NPS, Service NWRs and Tribes) along the 
LCR floodplain do conduct discretionary actions on their lands, the 
success of their conservation actions and impacts of other actions to 
restore pre-dam riparian forests are limited by the impacts of water 
management. Overall, the riparian forest and western yellow-billed 
cuckoo habitat managed by these land management agencies are not 
expected to be harmed further by site-specific land management actions 
because the quality of vegetation has already been degraded. To the 
extent that remaining patches of riparian habitat and western yellow-
billed cuckoo habitat continue to exist, they are of great value for 
western yellow-billed cuckoo conservation. As a result, past section 7 
consultations on land management agency actions within the proposed 
critical habitat along the LCR show that land management agencies 
conserve existing riparian vegetation and explore innovative strategies 
outside of the restrictions on water management to improve vegetation 
quality that could be used by western yellow-billed cuckoos. Because 
the regulated stream flow has caused habitat degradation and existing 
water management operations prevent any change in water management that 
can improve the riparian forest, land management agencies are unable to 
impact these river flow conditions, nor are they able to impact river 
flow conditions through non-discretionary mandatory reasonable and 
prudent measures or alternatives resulting from any possible future 
section 7 consultation. Therefore, there are limited benefits to 
designating critical habitat on lands managed by Federal and Tribal 
partners within the LCR MSCP implementation.
    We also have determined that few additional benefits would be 
derived from including the five tribal areas within the LCR MSCP 
planning area as western yellow-billed cuckoo critical habitat, beyond 
what will be achieved through the implementation of their management 
plans. No different than our description above, we expect that the 
degraded environmental baseline caused by water storage, river 
regulation, and channel maintenance would cause similar evaluations and 
conclusions in section 7 consultations on tribal lands within the LCR 
MSCP planning area. Additionally, because these tribes are also 
implementing their Flycatcher Management Plans or Flycatcher and Cuckoo 
Management Plans that preserve existing habitat, similarly within the 
limitations caused by regulation of the Colorado River, there are 
likely few regulatory benefits to be gained from a designation of 
western yellow-billed cuckoo critical habitat.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners, 
agencies, tribes, and the public regarding the potential conservation 
value of an area, and may help focus conservation efforts on areas of 
high conservation value for certain species. Critical habitat may 
signal the presence of sensitive habitat that could otherwise be missed 
in the review process for these other environmental laws.
    Some educational and conservation benefit from reinforcing other 
environmental laws and regulations may also be gained from including 
the LCR MSCP planning area within the western yellow-billed cuckoo 
critical habitat designation. However, this conservation benefit can 
also be accomplished through ongoing education being conducted by the 
LCR MSCP. As long as the educational benefit is ongoing, the support of 
other laws and regulations is minimized. Ongoing outreach that educates 
local communities about the LCR MSCP program activities conducted to 
benefit species along the river including conservation-themed community 
events, professional conferences, Project Water Education for Teachers 
(Wet) workshops, school programs, youth conservation corps 
coordination, volunteer opportunities, and outdoor expos (LCR MSCP 
2020, pp. 303-304). The annual Colorado River Terrestrial and Riparian 
meeting and Las Vegas

[[Page 20901]]

Science and Technology Festival are two events funded by the MSCP. 
Although this is a well-known southwestern willow flycatcher and 
western yellow-billed cuckoo management area, we continue to learn 
about these species' biology and potential impacts from proposed 
projects may emerge at any time. Educating individuals, agencies, and 
organizations with existing or updated western yellow-billed cuckoo 
biology is an ongoing process. Through the development and 
implementation of the LCR MSCP, the 2014 and 2020 western yellow-billed 
cuckoo critical habitat proposals, ongoing studies, the development of 
land management plans, and the creation of specific tribal management 
plans, the value of the LCR and riparian habitat for the western 
yellow-billed cuckoo is well established. Some educational benefits 
have already occurred through past actions even though the LCR MSCP 
planning area is not currently designated as critical habitat. The 
importance of the LCR MSCP implementation area for western yellow-
billed cuckoo conservation to meet conservation goals established for 
the LCR is well understood by managing agencies, Native American 
tribes, private industry, and public, State, and local governments. The 
LCR MSCP provides new information gained from its studies to all 
parties through reports, meetings, coordination, and outreach. 
Management recommendations developed from these studies include 
avoiding disturbance activities in occupied habitat through the end of 
September to allow late-breeders to raise young and the need to develop 
and implement management actions that ensure long-term suitability of 
created habitat.

Benefits of Exclusion--Lower Colorado River Multi-Species Conservation 
Plan (LCR MSCP)

    The benefits of excluding the LCR MSCP management areas from the 
designation are considerable, and include the conservation measures 
described above (land acquisition, management, and habitat development) 
and those associated with implementing conservation through enhancing 
and developing partnerships.
    A small benefit of excluding the LCR from critical habitat includes 
some reduction in administrative costs associated with engaging in the 
critical habitat portion of section 7 consultations due the area being 
occupied and the species being listed as threatened. Administrative 
costs include time spent in meetings, preparing letters and biological 
assessments, and in the case of formal consultations, the development 
of the critical habitat component of a biological opinion. However we 
anticipate that the costs to perform the additional critical habitat 
and associated adverse modification analysis would not be significant.
    The exclusion of the LCR from critical habitat as a result of the 
LCR MSCP can help facilitate other cooperative conservation activities 
with other similarly situated dam operators or landowners. Continued 
cooperative relations with the States and a myriad of stakeholders is 
expected to influence other future partners and lead to greater 
conservation than would be achieved through multiple site-by-site, 
project-by-project efforts, and associated section 7 consultations. 
With the current degraded condition of the environmental baseline and 
limitations associated with changes to dam operations, the LCR MSCP 
conservation measures commit the program to create and manage at least 
5,940 ac (2,404 ha) of cottonwood-willow and 1,320 ac (534 ha) of honey 
mesquite land cover types to provide habitat for 14 species including 
the western yellow-billed cuckoo (Reclamation 2020a, p. 7). A mosaic of 
these habitat types in patches of at least 25 ac (10 ha) and totaling 
at least 4,050 ac (1,639 ha) is required to be created and managed for 
western yellow-billed cuckoos (LCR MSCP 2004, entire). Between 2005 and 
2019, the LCR MSCP has created 4,117 ac (1,666 ha) of cottonwood-willow 
and 1,800 ac (728 ha) of mesquite habitat (LCR MSCP 2020, pp. 14, 15, 
94; Reclamation 2020a, p. 7) in critical habitat Units 1, 2, and 3.
    The benefits of excluding lands within the LCR MSCP plan area from 
critical habitat designation include recognizing the value of 
conservation benefits associated with these HCP actions; encouraging 
actions that benefit multiple species; encouraging local participation 
in development of new HCPs; and facilitating the cooperative activities 
provided by the Service to landowners, communities, and counties in 
return for their voluntary adoption of the HCP.
    The LCR MSCP will help generate important status and trend 
information for western yellow-billed cuckoo recovery. In addition to 
specific western yellow-billed cuckoo conservation actions, the 
development and implementation of this HCP provides regular monitoring 
of western yellow-billed cuckoo habitat, distribution, and abundance 
over the 50-year permit. Most of the western yellow-billed cuckoos 
successfully breeding along the LCR since 2005 have been in habitat 
created and managed by the LCR in five created conservation areas: Beal 
Lake Conservation Area on Havasu NWR, Cibola NWR Unit #1 Conservation 
Area, Cibola Valley Conservation Area, Palo Verde Ecological Reserve on 
California Department of Fish and Wildlife land, and Yuma East Wetlands 
on city of Yuma, Quechan Indian Tribe lands, and Arizona Game and Fish 
Department lands (LCR MSCP 2020, pp. 162-163, 179-249; Reclamation 
2020a, pp. 7-8). Although nesting was not confirmed in other sites, 
western yellow-billed cuckoos were detected at Planet Ranch on the Bill 
Williams River, Laguna Division Conservation Area near Yuma, and 
Hunters Hole at the southern end of the Limitrophe (Parametrix, Inc. 
and Southern Sierra Research Station 2019, entire). They have also been 
documented nesting in other habitat areas between southern Nevada and 
the Southern International Border with Mexico.
    Failure to exclude the LCR MSCP planning area could be a 
disincentive for other entities contemplating partnerships as it would 
be perceived as a way for the Service to impose additional regulatory 
burdens once conservation strategies have already been agreed to 
through our permitting process. Private entities are motivated to work 
with the Service collaboratively to develop voluntary HCPs because of 
the regulatory certainty provided by an incidental take permit under 
section 10(a)(1)(B) of the Act with the No Surprises Assurances. This 
collaboration often provides greater conservation benefits than could 
be achieved through strictly regulatory approaches, such as critical 
habitat designation. The conservation benefits resulting from this 
collaborative approach are built upon a foundation of mutual trust and 
understanding. It has taken considerable time and effort to establish 
this foundation of mutual trust and understanding, which is one reason 
it often takes several years to develop a successful HCP. Excluding 
this area from critical habitat would help promote and honor that trust 
by providing greater certainty for permittees that once appropriate 
conservation measures have been agreed to and consulted on for listed 
and sensitive species additional consultation will not be necessary.
    HCP permittees and stakeholders submitted comments that they view 
critical habitat designation along the LCR as unwarranted and an 
unwelcome intrusion to river operations, and an erosion of the 
regulatory certainty that

[[Page 20902]]

is provided by their incidental take permit and the No Surprises 
assurances. Additionally, the LCR MSCP partners and stakeholders sent 
comments of support for exclusion of all the LCR MSCP partners within 
the planning area, specifically Service NWRs because they were not 
initially identified as locations we were considering for exclusion. 
Having applicants understand the Service's commitment will encourage 
continued partnerships with these permittees that could result in 
additional conservation plans or additional lands enrolled in HCPs.
    Our collaborative relationships with the LCR MSCP permittees 
clearly make a difference in our partnership with the numerous 
stakeholders involved and influence our ability to form partnerships 
with others. Concerns over perceived added regulation potentially 
imposed by critical habitat harms this collaborative relationship by 
leading to distrust. Our experience has demonstrated that successful 
completion of one HCP has resulted in the development of other 
conservation efforts and HCPs with other landowners. Partners 
associated with the LCR MSCP also established HCPs with the Service in 
central Arizona.
    There are additional considerable benefits from excluding the areas 
owned by or held in trust for the five tribes along the LCR including 
the advancement of our partnership with the tribes and for the tribes 
to develop and implement tribal conservation and natural resource 
management plans for their lands and resources, which includes the 
western yellow-billed cuckoo. Benefits associated with excluding tribes 
and other landowners and managers also include: (1) The maintenance of 
effective working relationships to promote the conservation of the 
western yellow-billed cuckoo and its habitat; (2) the allowance for 
continued meaningful collaboration and cooperation; (3) the provision 
of conservation benefits to riparian ecosystems and the western yellow-
billed cuckoo and its habitat that might not otherwise occur; and (4) 
the reduction or elimination of administrative and/or project 
modification costs as analyzed in the economic analysis.
    During the development of the 2014 and 2020 western yellow-billed 
cuckoo critical habitat proposals, we sought and received input from 
tribes. We provided technical assistance to tribes requesting 
assistance to develop measures to conserve the western yellow-billed 
cuckoo and its habitat on their lands. These measures are contained 
within the management and conservation plans that we have in our 
supporting record for this decision (see discussion above). These 
proactive actions were conducted in accordance with Secretarial Order 
3206, ``American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Endangered Species Act'' (June 5, 1997); the 
relevant provision of the Departmental Manual of the Department of the 
Interior (512 DM 2); and Secretarial Order 3317, ``Department of 
Interior Policy on Consultation with Indian Tribes'' (December 1, 
2011). We have determined that these tribes should be the governmental 
entities to manage and promote western yellow-billed cuckoo 
conservation on their lands. During our communication with these 
tribes, we recognized and endorsed their fundamental right to provide 
for tribal resource management activities, including those relating to 
riparian ecosystems.
    The benefits of excluding this HCP from critical habitat 
designation include relieving Federal agencies, State agencies, 
landowners, tribes, communities, and counties of any additional 
regulatory burden for water management actions that might be imposed by 
critical habitat. The LCR MSCP took many years to develop and, upon 
completion, became a river long conservation plan that is consistent 
with the western yellow-billed cuckoo recovery objectives within the 
planning area. This HCP provides western yellow-billed cuckoo 
conservation benefits and commitments toward habitat development and 
management, and western yellow-billed cuckoo surveys and studies that 
could not be achieved through project-by-project section 7 
consultations. Imposing an additional regulatory review after the HCP 
is completed, solely as a result of the designation of critical 
habitat, may undermine conservation efforts and partnerships in many 
areas. In fact, it could result in the loss of species' benefits if 
future participants abandon the voluntary HCP process. Designation of 
critical habitat along the LCR could be viewed as a disincentive to 
those entities currently developing HCPs or contemplating them in the 
future. We find the section 7 consultation process for a designation of 
critical habitat, above and beyond that which is already required for 
the species, is unlikely to result in additional protections for the 
western yellow-billed cuckoo on lands within the LCR MSCP planning and 
implementation area (which includes NPS, Service, BLM, tribal lands, 
and non-Federal lands).

Benefits of Exclusion Outweigh the Benefits of Inclusion--Lower 
Colorado River Multi-Species Conservation Plan (LCR MSCP)

    We have determined that the benefits of excluding the LCR MSCP 
planning area along the LCR within the States of Arizona and California 
from the designation of western yellow-billed cuckoo critical habitat 
on all Federal, State, Tribal, and non-Federal lands outweigh the 
benefits of inclusion. In our determination, we considered and found 
that the HCP meets our criteria for exclusion for HCPs (see Private or 
Other Non-Federal Conservation Plans Related to Permits Under Section 
10 of the Act). Implementation of western yellow-billed cuckoo 
conservation included within the LCR MSCP planning area, combined with 
the conservation efforts of other land managers, has already created 
and will continue to create and manage habitat that benefits breeding 
western yellow-billed cuckoo and other riparian dependent species.
    Under section 7 of the Act, critical habitat designation will 
provide little additional benefit to the western yellow-billed cuckoo 
within the boundaries of the LCR MSCP. The catalyst for the LCR MSCP 
was largely a result of the jeopardy biological opinion (Service 1997, 
entire) for the southwestern willow flycatcher to Reclamation for its 
LCR operations (Service 2005a, entire). The Law of the River, which 
protects the regulation and delivery of Colorado River water to the 
western United States, prevents altering the regulation of the Colorado 
River for the benefit of a more naturally functioning system, which can 
create and recycle southwestern willow flycatcher and western yellow-
billed cuckoo habitat. As a result, the development of the LCR MSCP and 
its Implementing Agreement are designed to ensure southwestern willow 
flycatcher and western yellow-billed cuckoo conservation within the 
planning area and includes management measures to protect, restore, 
enhance, manage, research, and monitor western yellow-billed cuckoo 
habitat (along the Colorado River and at mitigation sites). The 
adequacy of LCR MSCP conservation measures to protect the then 
candidate western yellow-billed cuckoo and its habitat have undergone 
evaluation under a section 7 consultation conference opinion under the 
Act, reaching a non-jeopardy conclusion. Therefore, the benefit of 
including the LCR MSCP planning area to require section 7 consultation 
for critical habitat is minimized.

[[Page 20903]]

    The commitment by the LCR MSCP partners to western yellow-billed 
cuckoo conservation throughout the planning area is considerable and we 
have determined that the LCR MSCP has met the conditions to be excluded 
from critical habitat as identified above (see Private or Other Non-
Federal Conservation Plans Related to Permits Under Section 10 of the 
Act). The LCR MSCP partners commit through implementation of their 
permit to developing, managing, and protecting 4,050 ac (1,639 ha) of 
western yellow-billed cuckoo nesting habitat and has already created 
4,117 ac (1,666 ha) of cottonwood-willow and 1,800 ac (728 ha) of 
mesquite habitat within the boundaries of their planning area (LCR MSCP 
2020, pp. 5, 94; Reclamation 2020a, p. 7). Additional habitat to be 
created is in the planning stage. As described above, much of these 
habitats are expected to occur within irrigated agricultural fields 
adjacent to river. The culmination of these efforts is expected to 
maintain, develop and improve migration, dispersal, sheltering, and 
foraging habitat; develop metapopulation stability; and protect against 
catastrophic losses.
    Additional riparian habitat along the river that can be used by 
western yellow-billed cuckoos, mostly as migratory habitat and also as 
nesting habitat, occurring across thousands of acres (hectares), will 
collectively be restored, planted, managed, and maintained on NWRs 
(Cibola, Imperial, and Bill Williams River), Federal lands (NPS and 
BLM), and tribal lands (Colorado River Indians Tribes, Fort Mohave 
Tribe, Cocopah Tribe, Chemehuevi Tribe, and Fort Yuma (Quechan) Tribe) 
along the LCR within the area covered by the LCR MSCP.
    This HCP involved public participation through public notices and 
comment periods associated with the NEPA process prior to being 
approved. Additionally, this HCP is one of the largest HCPs in the 
country, with an extensive list of stakeholders and permittees from 
California, Arizona, and Nevada that took about a decade to complete. 
Therefore, managing agencies, States, counties, cities, and other 
stakeholders are aware of the importance of the LCR for the western 
yellow-billed cuckoo. For these reasons, although we have determined 
that designation of critical habitat along the LCR MSCP planning area 
would provide some additional educational benefit, much of this is 
already occurring through the LCR MSCP.
    Covered activities under the LCR MSCP are not the only possible 
impacts to western yellow-billed cuckoo habitat along the LCR. There 
are continued projects developed, carried out, funded, and permitted by 
Federal agencies such as Reclamation and BLM that are not covered by 
the LCR MSCP. Fire management, habitat restoration, recreation, and 
other activities have the ability to adversely affect the western 
yellow-billed cuckoo and critical habitat. Minor changes in habitat 
restoration, fire management, and recreation could occur as result of a 
critical habitat designation in the form of additional discretionary 
conservation recommendations to reduce impacts to critical habitat. 
Therefore, if the LCR was designated as critical habitat, there may be 
some benefit through consultation under the adverse modification 
standard for actions not covered by the LCR MSCP. But, as explained 
above, the habitat along the LCR is so degraded that it is unlikely 
that a section 7 consultation under an adverse modification standard 
would result in mandatory elements (i.e., reasonable and prudent 
alternatives) within the LCR MSCP planning area.
    Excluding the LCR within the LCR MSCP planning area would eliminate 
some small additional administrative effort and cost during the 
consultation process pursuant to section 7 of the Act. Excluding the 
LCR MSCP planning area would continue to help foster development of 
future HCPs and strengthen our relationship with Arizona, California, 
and Nevada permittees and stakeholders, eliminating regulatory 
uncertainty associated with permittees and stakeholders. Excluding the 
LCR MSCP planning area eliminates any possible risk to water storage, 
delivery, diversion and hydroelectric production to Arizona, 
California, and Nevada, and therefore significant potential economic 
costs due to a critical habitat designation. We have therefore 
concluded that the benefits to the western yellow-billed cuckoo and its 
habitat as result of the improvement, maintenance, and management 
activities attributed to the LCR MSCP, and those additional efforts 
conducted by NWRs, Tribes, and other land managers, outweigh those that 
would result from the addition of a critical habitat designation. We 
have therefore excluded these lands from the final critical habitat 
designation pursuant to section 4(b)(2) of the Act.

Exclusion Will Not Result in Extinction of the Species--Lower Colorado 
River Multi-Species Conservation Plan (LCR MSCP)

    We have determined that exclusion of the Colorado River within the 
LCR MSCP planning area will not result in extinction of the western 
yellow-billed cuckoo. As discussed above under Effects of Critical 
Habitat Designation Section 7 Consultation, if a Federal action or 
permitting occurs, the known presence of western yellow-billed cuckoos 
or their habitat would require evaluation under the jeopardy standard 
of section 7 of the Act, even absent the designation of critical 
habitat, and thus will protect the species against extinction. Second, 
the amount of suitable habitat being created as result of implementing 
the LCR MSCP, combined with management by other land managers, is 
expected to be able to provide substantial western yellow-billed cuckoo 
breeding habitat. The Implementation Agreement establishes a 50-year 
commitment to accomplish these tasks. Overall, we expect greater 
western yellow-billed cuckoo conservation through these commitments 
than through project-by-project evaluation implemented through a 
critical habitat designation. Accordingly, we have determined that the 
LCR MSCP area should be excluded under subsection 4(b)(2) of the Act 
because the benefits of exclusion outweigh the benefits of inclusion 
and will not cause the extinction of the species and we are excluding 
the entire Unit 1: CA/AZ-1 (82,138 ac (33,240 ha)), Unit 2: CA/AZ-2 
(23,589 ac (9,546 ha)) and Unit 3: AZ-1 (3,389 ac (1,371 ha)) that 
occur in the LCR MSCP planning area along the Colorado River and Bill 
Williams River from the final critical habitat designation.
Unit 11 (AZ-9A and AZ-9B) Horseshoe Dam--Salt River Project Horseshoe 
Bartlett HCP
    We identified 3,974 ac (1,608 ha) within Unit 11 as proposed 
critical habitat in and adjacent to the water storage area of Horseshoe 
Reservoir and approximately 4 mi (6 km) downstream from the final 
designation. The Horseshoe Reservoir and Bartlett Dam are part of the 
Salt River Project (SRP) constructed by Reclamation. The SRP was part 
of a Federal action started in 1917 to construct irrigation facilities 
along the Salt and Verde River in Maricopa and Gila Counties, Arizona. 
Lands surrounding the reservoir and stream are managed by the Tonto 
National Forest. Horseshoe Reservoir facilities were completed in 1945 
and management and operation of the facilities was turned over to two 
entities: Salt River Project Agricultural Improvement and Power 
District (a political subdivision of the State of Arizona) and the Salt 
River Valley Water Users' Association (a private

[[Page 20904]]

corporation). The umbrella name for these two entities is also referred 
to as the Salt River Project (SRP), and these two entities have the 
authority to care for, operate, and maintain all project facilities 
including Horseshoe and Bartlett Dams. In 2002, the listed southwestern 
willow flycatcher was discovered nesting in trees on the Horseshoe 
lakebed and downstream of Horseshoe Dam along the Verde River (SRP 
2008, p. 6). As a result, SRP began discussions with the Service about 
developing a HCP, with the southwestern willow flycatcher being a 
primary focus of the HCP. Because the habitat managed for southwestern 
willow flycatchers is also used by nesting and foraging western yellow-
billed cuckoo, separate habitat mitigation requirements for the western 
yellow-billed cuckoo were not identified in the HCP. Because SRP 
operates Horseshoe and Bartlett Dams on Federal lands within Tonto 
National Forest, the Service issued an incidental take permit to SRP 
under section 10(a)(1)(B) of the Act in 2008.
    The HCP is being properly implemented and identifies the 
southwestern willow flycatcher and the western yellow-billed cuckoo as 
covered species, and impacts to nesting habitat and breeding attempts 
from raising and lowering of the water stored behind Horseshoe Dam are 
covered activities for the duration of the permit, thereby meeting 
criteria 1 and 2 above for consideration for exclusion (see Private or 
Other Non-Federal Conservation Plans Related to Permits Under Section 
10 of the Act). The biological goals of the HCP will be achieved with 
the following measures: (1) Managing water levels in Horseshoe Lake to 
the extent practicable to support tall dense vegetation at the upper 
end of the lake for southwestern willow flycatcher and western yellow-
billed cuckoos; and (2) acquiring and managing southwestern willow 
flycatcher and western yellow-billed cuckoo habitat along rivers in 
central Arizona to provide a diversity of geographic locations with 
habitat like Horseshoe Lake (SRP 2008, pp. ES-4, 9). These measures 
meet criteria 3 above for exclusion under Private or Other Non-Federal 
Conservation Plans Related to Permits Under Section 10 of the Act.
    Optimum operation of Horseshoe and Bartlett is predicted to 
periodically result in the unavailability, modification, or loss of up 
to 200 ac (81 ha) of occupied southwestern willow flycatcher and 
western yellow-billed cuckoo habitat on average. If circumstances 
change, adaptive management will be implemented to address impacts on 
up to 200 ac (81 ha) of additional occupied southwestern willow 
flycatcher and western yellow-billed cuckoo habitat at Horseshoe Lake 
(SRP 2008, p. ES-5). On-site and off-site minimization and mitigation 
measures are identical for both species (SRP 2008, p. 169). Under the 
Horseshoe and Bartlett Dam HCP, SRP owns and manages the Gila River 
mitigation properties near Fort Thomas in Unit 22 (AZ-20; Gila River 
1). We identified these properties as critical habitat, but because SRP 
supports including them as critical habitat, we did not consider them 
for exclusion (SRP 2014, entire). SRP established an irrevocable trust 
to fund this HCP in January 2011, with approximately $6.0M to support 
the estimated $300,000 on average annual expenditures over the life of 
the permit and in perpetuity costs for some of the mitigation 
obligations (SRP 2019a, p. 25).
    The action area, as described in the Horseshoe Bartlett HCP, 
prepared for SRP by ERO Resources Corporation (SRP 2008, entire), 
extends farther from the location of these dams to areas where the 
impacts of water storage and delivery may occur because of the impacts 
to other species caused by water regulation. Specific southwestern 
willow flycatcher-related impacts were only identified within the high 
water mark of the Horseshoe Lake conservation space between 2,026 ft 
(618 m) in elevation and Horseshoe Dam. The area within Horseshoe Lake 
is Federal land managed by the USFS and Reclamation, and SRP maintain 
interest in water management of the lake. A tri-party agreement between 
SRP, USFS, and Reclamation establishes a framework to maintain these 
water storage areas for their intended purpose. The Tonto National 
Forest continues to manage this area for recreation and other public 
land uses (SRP 2008, p. 16).
    Periodic changes in the level of the lake water of the Horseshoe 
Lake conservation space due to dam operations and water storage can 
result in the establishment and maintenance of nesting western yellow-
billed cuckoo habitat. This is because western yellow-billed cuckoos 
nest or otherwise use vegetation that grows in the dry lakebed within 
the conservation space. Rising water levels or excessive drying can 
cause temporary losses and unavailability of this nesting habitat. The 
amount and timing of water stored in Horseshoe Lake can vary widely 
from year-to-year because of the relatively small amount of water 
storage space in Horseshoe Lake, the erratic nature of precipitation 
and run-off, and the arid nature of the Sonoran Desert.
    It is estimated that between 60 to 450 ac (24 to 182 ha) of western 
yellow-billed cuckoo nesting habitat will occur annually within the 
high water mark of Horseshoe Lake over the 50-year permit period of 
this HCP (SRP 2008, p. 120). The annual average of western yellow-
billed cuckoo habitat estimated to occur within the lake is 260 ac (105 
ha) (SRP 2008, p. 120). In total, the upper limit of occupied western 
yellow-billed cuckoo habitat addressed by the HCP is 400 ac (162 ha) 
(SRP 2008, pp. 134-135).
    The 50-year Horseshoe Bartlett HCP conservation strategy focuses 
primarily on the protection and management of southwestern willow 
flycatcher and western yellow-billed cuckoo habitat within the 
Horseshoe Lake conservation space through modified dam operations; 
acquisition and management of habitat outside of Horseshoe Lake; and 
the implementation of measures to conserve Verde River water. SRP will 
modify dam operations to make western yellow-billed cuckoo habitat 
available earlier in the nesting season and to maintain riparian 
vegetation at higher elevations within the conservation space whenever 
possible. SRP acquired a 150 ac (61 ha) and a 55 ac (22 ha) parcel 
along the upper Gila River near Fort Thomas (SRP 2019a, p. 14). SRP's 
water supply protection program will focus on special projects to 
specifically benefit mitigation habitat such as ground water testing 
and modeling in the vicinity of mitigation lands, development and 
support of instream flow water rights, and research on the relationship 
between hydrology, habitat, and covered species under the HCP.
    Ongoing maintenance on mitigation properties include year-round 
perimeter fence patrolling and repair; and removing nonnative plants, 
kochia (Kochia scoparia) and Russian thistle (Salsola tragus); pruning 
salt cedar limbs from fence lines and roads; and, patrolling and 
management of trespass cattle (SRP 2019a, pp. 15-16). SRP is engaged in 
substantial and ongoing watershed management efforts to maintain and 
improve stream flows, which benefit all main-stem species. These 
watershed protection efforts include 25 different actions in 2018 (SRP 
2019a, pp. 16-24). SRP is actively protecting in-stream flow through 
administrative and legal efforts, public outreach and education, 
funding research and monitoring, and protection of future water 
supplies for mitigation lands.
    The issuance of the Horseshoe Bartlett HCP permit was based upon 
the persistence of varying degrees of occupied nesting southwestern 
willow

[[Page 20905]]

flycatcher habitat within the Horseshoe Lake conservation space (under 
full operation of Horseshoe and Bartlett Dams) that, along with other 
areas could reach breeding and habitat-related goals established in the 
2002 Southwestern Willow Flycatcher Recovery Plan. Although a recovery 
plan has not been developed for western yellow-billed cuckoo, the 
persistence of habitat within the Horseshoe Lake conservation space and 
other areas upstream and downstream on the Verde River have benefited 
breeding western yellow-billed cuckoos.

Benefits of Inclusion--Horseshoe and Bartlett Dams HCP

    As discussed above under Effects of Critical Habitat Designation 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat. A critical habitat 
designation requires Federal agencies to consult on whether their 
activity would destroy or adversely modify critical habitat to the 
point where recovery could not be achieved.
    The Horseshoe Lake area is occupied by western yellow-billed 
cuckoos and, although western yellow-billed cuckoos were not listed at 
the time the section 7 consultation for southwestern willow flycatchers 
was conducted, effects to western yellow-billed cuckoos were evaluated 
as part of the HCP permitting process. There may be some minor benefits 
by the designation of critical habitat within Horseshoe Lake, primarily 
because of the additional review required by USFS management of the 
area. Not only does the USFS manage recreation, access, land use, and 
wildfire suppression and management activities, USFS also ensures that 
there is no cattle grazing, or road and camping developments; 
recreation activities at the lake are mostly focused on fishing. These 
USFS management actions have resulted in conservation of western 
yellow-billed cuckoo habitat since the listing of the southwestern 
willow flycatcher in 1995 within the conservation space of Horseshoe 
Lake. Additionally, because the purpose of the conservation space of 
Horseshoe Lake is to store water, it prevents significant land and 
water altering actions, such as the development of permanent structures 
within this open space area. As a result, because of the conservation 
associated with implementing the HCP, western yellow-billed cuckoo 
breeding areas occurring within the Horseshoe Lake conservation space, 
and supporting USFS management, we have determined that these 
incremental benefits of a critical habitat designation are minimized. 
Formal consultations will likely result in only discretionary 
conservation recommendations due to existing appropriate management; 
therefore we have determined that there is a low probability of 
mandatory elements (i.e., reasonable and prudent alternatives) arising 
from formal section 7 consultations evaluating western yellow-billed 
cuckoo critical habitat at Horseshoe Lake.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners, 
agencies, tribes, and the public regarding the potential conservation 
value of an area, and may help focus conservation efforts on areas of 
high conservation value for certain species. Any information about the 
western yellow-billed cuckoo that reaches a wide audience, including 
parties engaged in conservation activities, is valuable. The 
designation of critical habitat may also affect the implementation of 
Federal laws, such as the Clean Water Act. These laws analyze the 
potential for projects to significantly affect the environment. 
Critical habitat may signal the presence of sensitive habitat that 
could otherwise be missed in the review process for these other 
environmental laws.
    We have determined that there would be little additional 
educational and informational benefit gained from including Horseshoe 
Lake within the designation, because this area is well known as an 
important area for western yellow-billed cuckoo management and 
recovery. For example, the Horseshoe Bartlett HCP was developed over 
multiple years and was completed in 2008; and the Horseshoe Lake area 
was proposed as southwestern willow flycatcher critical habitat in 2004 
and excluded in 2005, and proposed as western yellow-billed cuckoo 
habitat in 2014 and 2020. Additionally, since the early 2000s, 
Horseshoe Lake southwestern willow flycatchers and western yellow-
billed cuckoos have been discussed by management agencies while meeting 
to discuss management issues occurring in the area for two species 
(western yellow-billed cuckoos as a candidate species). Consequently, 
we have determined that the informational benefits have already 
occurred through past actions even though this area is not designated 
as critical habitat. The importance of Horseshoe Lake for conservation 
of the western yellow-billed cuckoo, its importance to the Verde River, 
and to the population of western yellow-billed cuckoos in the State of 
Arizona has already been realized by managing agencies, including the 
public, State and local governments, and Federal agencies.

Benefits of Exclusion--Horseshoe and Bartlett Dams HCP

    The benefits of excluding the area within the high-water mark 
(below an elevation of 2,026 ft (618 m) of Horseshoe Lake from being 
designated as critical habitat are considerable, and include the 
conservation measures described above and those associated with 
implementing conservation through enhancing and developing 
partnerships.
    The Horseshoe Bartlett HCP has and will continue to help generate 
important status and trend information and conservation toward western 
yellow-billed cuckoo recovery. SRP will continue to modify dam 
operations to make western yellow-billed cuckoo habitat available 
earlier in the nesting season, manage 200 ac (81 ac) of habitat for the 
western yellow-billed cuckoo, and implement water protection programs 
on the Verde River. In addition to those specific western yellow-billed 
cuckoo conservation actions, the development and implementation of this 
HCP provides regular monitoring of western yellow-billed cuckoo 
habitat, distribution, and abundance over the 50-year permit at 
Horseshoe Lake. SRP is currently implementing innovative monitoring of 
riparian habitat abundance and western yellow-billed cuckoo habitat 
suitability through satellite image-based models (Hatten and Paradzick 
2003, entire; SRP 2012a, pp. 13-14).
    Because of the importance of the Horseshoe Lake conservation space 
for water storage, there is no expectation that any considerable 
development or changes to the landscape would result in reducing the 
overall water storage space, and therefore the overall ability to 
develop riparian vegetation. Horseshoe Dam operates in a way that 
continues moves water out of the reservoir downstream to Bartlett Lake 
and canals in order to continuously create water storage conservation 
space, and therefore area for western yellow-billed cuckoo habitat to 
be maintained. Constant lake levels, which are not the operational 
condition at Horseshoe Lake for water storage, will not create or 
maintain abundant western yellow-billed cuckoo habitat. On the 
contrary,

[[Page 20906]]

dynamic lake levels that mimic the function of flooding on river 
systems are essential for creating habitat conditions needed by nesting 
western yellow-billed cuckoos within Horseshoe Lake.
    Not excluding the areas within Horseshoe Bartlett HCP could be a 
disincentive for other entities contemplating partnerships, as it would 
be perceived as a way for the Service to impose additional regulatory 
burdens once conservation strategies have already been agreed to. 
Private entities are motivated to work with the Service collaboratively 
to develop voluntary HCPs because of the regulatory certainty provided 
by an incidental take permit under section 10(a)(1)(B) of the Act with 
the ``No Surprises'' assurances. This collaboration often provides 
greater conservation benefits than could be achieved through strictly 
regulatory approaches, such as critical habitat designation. The 
conservation benefits resulting from this collaborative approach are 
built upon a foundation of mutual trust and understanding. It takes 
considerable time and effort to establish this foundation of mutual 
trust and understanding. Excluding this area from critical habitat 
would help promote and honor that trust by providing greater certainty 
for permittees that once appropriate conservation measures have been 
agreed to and consulted on for the western yellow-billed cuckoo that 
additional consultation will not be necessary. Working together with 
SRP and Reclamation, USFS management has continued to foster the 
maintenance and development of western yellow-billed cuckoo habitat 
through land management actions that protect habitat and reduce habitat 
stressors. The majority of USFS standards and guidelines in the Tonto 
National Forest's Land Management Resource Plan would benefit the 
western yellow-billed cuckoo.
    Through the development of the Horseshoe Bartlett HCP, we have 
generated additional partnerships with SRP and its stakeholders by 
developing collaborative conservation strategies for the western 
yellow-billed cuckoo and the habitat upon which it depends for 
breeding, sheltering, foraging, migrating, and dispersing. The 
strategies within the HCP seek to achieve conservation goals for the 
western yellow-billed cuckoo and its habitat, and thus can be of 
greater conservation benefit than the designation of critical habitat, 
which does not require specific actions. Continued cooperative 
relations with SRP and its stakeholders is expected to influence other 
future partners and lead to greater conservation than would be achieved 
through multiple site-by-site, project-by-project, section 7 
consultations. For example, soon after completing the Roosevelt HCP, we 
partnered with SRP and its stakeholders to develop the Horseshoe and 
Bartlett Dam HCP where the western yellow-billed cuckoo conservation 
was a key component. The benefits of excluding lands within the 
Horseshoe and Bartlett Dam HCP area from critical habitat designation 
include recognizing the value of conservation benefits associated with 
HCP actions; encouraging actions that benefit multiple species; 
encouraging local participation in development of new HCPs; and 
facilitating the cooperative activities provided by the Service to 
landowners, communities, and counties in return for their voluntary 
adoption of the HCP. Concerns over perceived added regulation 
potentially imposed by critical habitat could harm this collaborative 
relationship.
    Another benefit of excluding Horseshoe Bartlett HCP area from 
critical habitat includes a small reduction in administrative costs for 
Federal agencies associated with engaging in activities within the 
critical habitat portion of section 7 consultations. Administrative 
costs include time spent in meetings, preparing letters and biological 
assessments, and in the case of formal consultations, the development 
of the critical habitat component of a biological opinion. However, 
because the western yellow-billed cuckoo occurs at Horseshoe Lake 
during the breeding season, consultations evaluating jeopardy to the 
western yellow-billed cuckoo would be expected to occur regardless of a 
critical habitat designation, and those costs to perform the additional 
analysis are not expected to be significant.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Horseshoe 
Bartlett Dams HCP

    We have determined that the benefits of exclusion of the 
conservation space of Horseshoe Bartlett HCP below 2,026 ft (618 m) of 
Horseshoe Lake from the designation of western yellow-billed cuckoo 
critical habitat on Federal lands surrounding the lake managed by the 
USFS, as identified in the Horseshoe Bartlett HCP, outweigh the 
benefits of inclusion as critical habitat. In our determination, we 
considered and found that the HCP meets our criteria for exclusion for 
HCPs (see Private or Other Non-Federal Conservation Plans Related to 
Permits Under Section 10 of the Act) and whether the current dam 
operations, management, and conservation efforts protect, maintain and 
conserve western yellow-billed cuckoo habitat.
    The benefits of designating critical habitat for the western 
yellow-billed cuckoo at Horseshoe Lake are relatively low in comparison 
to the benefits of exclusion. We find that including Horseshoe Lake 
would result in very minimal, if any additional benefits to the western 
yellow-billed cuckoo, because Horseshoe Dam operations will continue to 
foster the maintenance, development, and necessary recycling of habitat 
for the western yellow-billed cuckoo in the long-term due to the 
dynamic nature of water storage and delivery. USFS management fosters 
the presence of western yellow-billed cuckoo habitat, and there is 
virtually no risk of changes to the landscape within the Horseshoe Lake 
conservation space, based on the track record of successful habitat 
maintenance for western yellow-billed cuckoos and southwestern willow 
flycatchers.
    The benefits of excluding Horseshoe Lake from inclusion as critical 
habitat are considerable and varied. Excluding Horseshoe Lake will 
strengthen our partnership with Horseshoe Bartlett HCP permittees and 
stakeholders and potentially help foster development of future HCPs. 
Excluding Horseshoe Lake also eliminates regulatory uncertainty 
associated with the permittees HCP and the operation of Horseshoe and 
Bartlett Dams for water storage and flood control. The conservation 
measures being implemented by the Horseshoe and Bartlett Dam HCP are 
considerable and include acquisition and management of western yellow-
billed cuckoo habitat, modifications of Horseshoe Dam operations to 
facilitate the persistence of western yellow-billed cuckoo habitat, and 
long-term monitoring of western yellow-billed cuckoo habitat and 
territories. These conservation measures will result in greater western 
yellow-billed cuckoo conservation benefits than what could be 
accomplished from a project-by-project evaluation through the 
incremental benefits of a critical habitat designation. Excluding 
Horseshoe Lake will also eliminate some additional administrative 
effort and cost during the consultation process pursuant to section 7 
of the Act.
    After weighing the benefits of including Horseshoe Lake as western 
yellow-billed cuckoo critical habitat against the benefit of exclusion, 
we have concluded that the benefits of excluding the conservation space 
of Horseshoe Lake below an elevation 2,026 ft. (618 m), underneath the 
coverage of the Horseshoe Bartlett HCP and with the support of USFS 
management, outweigh

[[Page 20907]]

those that would result from designating this area as critical habitat.
    As mentioned below in our evaluation of SRP's Roosevelt HCP, SRP 
requested that their western yellow-billed cuckoo mitigation property 
along the upper Gila River purchased as part of the measures to 
implement the Horseshoe Bartlett Dams HCP be designated as critical 
habitat. The mitigation property is not located within the Horseshoe 
lakebed, and may benefit from section 7 consultation. Therefore, based 
upon the comments received from SRP and the likely benefit of future 
section 7 consultation, we have honored the landowners request not to 
exclude the mitigation properties acquired by SRP along the Gila River 
from the final designation as critical habitat for the western yellow-
billed cuckoo.

Exclusion Will Not Result in Extinction of the Species--Horseshoe and 
Bartlett Dams HCP

    We find that the exclusion of the conservation space of Horseshoe 
Lake will not lead to the extinction of the western yellow-billed 
cuckoo, nor hinder its recovery because Horseshoe and Bartlett Dam 
operations combined with the preservation of open space within the lake 
and USFS land management will ensure the long-term persistence and 
protection of western yellow-billed cuckoo habitat at Horseshoe Lake. 
In addition, as discussed above under Effects of Critical Habitat 
Designation Section 7 Consultation, if a Federal action or permitting 
occurs, the known presence of western yellow-billed cuckoos or their 
habitat would require evaluation under the jeopardy standard of section 
7 of the Act, even absent the designation of critical habitat, and thus 
will protect the species against extinction. We determined in our 
intra-Service section 7 biological opinion for the issuance of the 
Horseshoe and Bartlett Dams HCP permit that operations would not result 
in jeopardy. We also determined that while Horseshoe Dam operations 
will cause incidental take of western yellow-billed cuckoos and cause 
fluctuations in habitat abundance and quality, reservoir operations 
will also create a dynamic environment that fosters the long-term 
persistence of habitat. It was estimated that during the life of the 
permit, the annual average of southwestern willow flycatcher and 
western yellow-billed cuckoo habitat estimated to occur within the lake 
is 260 ac (105 ha) (SRP 2008, p. 120). In total, the upper limit of 
occupied western yellow-billed cuckoo habitat at Horseshoe and Bartlett 
addressed by the HCP is 400 ac (162 ha), but could vary annually (SRP 
2008, pp. 134-135).
    Accordingly, we have determined that the critical habitat within 
the Salt River Project Horseshoe Bartlett HCP planning area should be 
excluded from the final designation because the benefits of exclusion 
outweigh the benefits of inclusion and will not cause the extinction of 
the species. Therefore, we are excluding approximately 397 ac (161 ha) 
of critical habitat from Unit 11: AZ-9A (76 ac (31 ha)) and AZ-9B (321 
ac (130 ha) from the final critical habitat designation.
Unit 12 (AZ-10) Tonto Creek and Unit 23 (AZ-21) Salt River--Salt River 
Project Roosevelt Lake HCP
    In the revised proposed rule we identified 3,155 ac (1,277 ha) for 
exclusion from Unit 12 (AZ-10, Tonto Creek) and 2,469 ac (1,000 ha) 
from Unit 23 (AZ-21, Salt River) from the final designation based on 
the Salt River Project (SRP) Roosevelt Dam HCP. SRP obtained a permit 
under section 10(a)(1)(B) of the Act in 2003, for the Roosevelt Dam HCP 
for the operation of Roosevelt Dam in Gila and Maricopa Counties, 
Arizona. Roosevelt Dam was constructed by Reclamation and turned over 
to SRP for operation and management. The permit authorizes incidental 
take of the federally listed southwestern willow flycatcher caused by 
the raising and lowering of the water stored by Roosevelt Dam for a 
period of 50 years. The then-candidate yellow-billed cuckoo was also 
covered by the HCP in anticipation of Federal listing. Critical habitat 
for this unit is a 12-mi (19-km)-long continuous segment of Tonto Creek 
ending at the 2,151-foot elevation line, which represents the lakebed 
of Theodore Roosevelt Lake. The extent of the full conservation storage 
pool at Roosevelt Lake extends to the 2,151-ft (656 m) high elevation 
line and represents the area covered by the Roosevelt Dam HCP. The land 
within the Roosevelt Lake perimeter is Federal land owned and managed 
by the USFS (Tonto National Forest).
    The Roosevelt Lake western yellow-billed cuckoo population 
fluctuates depending on the habitat conditions at the lake edge and 
inflows. During lower water years, flat gradient floodplains expose 
broad areas where riparian vegetation can grow at both the Salt River 
and Tonto Creek inflows. The areas at each end of the lake are 
estimated to be able to establish as much as 1,250 ac (506 ha) of 
habitat for the western yellow-billed cuckoo below the high water mark. 
The cycles of germination, growth, maintenance, and loss of western 
yellow-billed cuckoo habitat within the perimeter of Roosevelt Lake are 
dependent on how and when the lake recedes due to the amount of water 
in-flow, and subsequent storage capacity and delivery needs caused by 
Roosevelt Dam operations. The process of western yellow-billed cuckoo 
habitat inundation and drying through raising and lowering of lake 
levels can be more exaggerated than the dynamic flooding that occurs on 
free-flowing streams, yet those dynamic processes within the lake's 
high water mark mimic those that occur on a river and are important to 
develop and maintain western yellow-billed cuckoos and their habitat. 
Even in high-water years, some high quality riparian habitat would 
persist at Roosevelt Lake providing western yellow-billed cuckoo 
nesting opportunities.
    The Roosevelt Dam HCP conservation strategy for western yellow-
billed cuckoo focuses primarily on: (1) The acquisition and management 
of western yellow-billed cuckoo habitat outside of Roosevelt Lake; (2) 
the protection of existing habitat within the Roosevelt Lake 
conservation space; and (3) the creation of riparian habitat adjacent 
to Roosevelt Lake. Western yellow-billed cuckoo habitat is to be 
created and maintained at Roosevelt Lake (outside of the impacts of 
water storage) at the adjacent Rock House Demonstration Area. Also, 
because the USFS has management authority over dry land within the 
lakebed, SRP would fund a USFS Forest Protection Officer to patrol and 
improve protection of western yellow-billed cuckoo habitat in the 
Roosevelt lakebed from adverse activities such as fire ignition from 
human neglect, improper vehicle use, and other unauthorized actions 
that could harm habitat. These measures fulfill the criteria for 
consideration of exclusion of areas covered by the Roosevelt Dam HCP 
(see Private or Other Non-Federal Conservation Plans Related to Permits 
Under Section 10 of the Act).
    Because the mitigation measures for the already federally listed 
southwestern willow flycatcher were intended to support the then-
candidate western yellow-billed cuckoos as well, suitable habitat that 
fulfilled the needs of both species were included in the selection of 
mitigation sites in the HCP (SRP 2002, p. 132). As part of implementing 
the HCP, western yellow-billed cuckoo properties have been acquired 
along the lower San Pedro and Gila River (Middle Gila/San Pedro 
Management Unit) and along the Verde River (SRP 2012b, pp. 17-20). SRP 
has acquired 1,842 ac (745 ha) of riparian habitat and additional 
buffer lands and

[[Page 20908]]

water rights. They have also developed 20 ac (8 ha) of western yellow-
billed cuckoo habitat at Rockhouse Demonstration Site (not proposed as 
critical habitat) and funded the USFS employee to help on-the-ground 
management for Roosevelt Lake and western yellow-billed cuckoo (SRP 
2012b, pp. 13-20). SRP has collected and evaluated information on 
occupied habitats and population status of western yellow-billed 
cuckoos at Roosevelt Lake and mitigation properties.
    In response to the 2014 proposed and the 2020 revised proposed 
critical habitat rule, SRP requested that Roosevelt Lake, including the 
Tonto and Salt rivers inflows be excluded from final critical habitat 
designation, but that mitigation properties be designated as critical 
habitat.

Benefits of Inclusion--Roosevelt Lake HCP

    As discussed above under Effects of Critical Habitat Designation 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat. A critical habitat 
designation requires Federal agencies to consult on whether their 
activity would destroy or adversely modify critical habitat to the 
point where recovery could not be achieved.
    The Roosevelt Lake area is known to be occupied by western yellow-
billed cuckoos and has undergone section 7 consultation under the 
jeopardy standard related to the Roosevelt Lake HCP and USFS actions. 
There may be some minor benefits from the designation of critical 
habitat within Roosevelt Lake, primarily because it would require the 
Service and USFS to perform additional review of USFS management within 
the exposed portion of the lake bottom through a critical habitat 
consultation under section 7 of the Act. These USFS management actions 
are typically limited to recreation management and resource use because 
the Salt River Project operates conservation space of Roosevelt Lake to 
store water. USFS has appropriately managed recreation, access, land 
use, and wildfire in a manner that has conserved both southwestern 
willow flycatcher and western yellow-billed cuckoo habitat since the 
permit was issued, as demonstrated by the continued persistence of both 
species in habitat surrounding Roosevelt Lake. For these reasons and 
because formal consultations will likely result in only discretionary 
conservation recommendations due to existing appropriate management, we 
have determined that there is a low probability of mandatory elements 
(i.e., reasonable and prudent alternatives) arising from formal section 
7 consultations that include consideration of designated critical 
habitat for the western yellow-billed cuckoo at Roosevelt Lake.
    We have evaluated Roosevelt Lake Dam operations through 
implementation of the Roosevelt HCP, and considered impacts to western 
yellow-billed cuckoos and their habitat. The conservation strategies in 
the Roosevelt HCP included considerable habitat acquisition to account 
for habitat affected, with commitments for management and monitoring. 
We concluded that Roosevelt Dam operations, while causing incidental 
take of western yellow-billed cuckoos periodically, will support the 
development of additional habitat over time. Because of the non-
jeopardy analysis completed in our section 7 consultation, the 
continued function of Roosevelt Lake to establish western yellow-billed 
cuckoo habitat for recovery, and the comprehensive conservation 
strategies implemented in the HCP, we have determined that there is a 
low probability of mandatory elements (i.e., reasonable and prudent 
alternatives) arising from formal section 7 consultations that include 
consideration of Roosevelt Dam operations on designated western yellow-
billed cuckoo critical habitat at Roosevelt Lake.
    Another important benefit of designation is that it can serve to 
educate landowners, agencies, tribes, and the public regarding the 
potential conservation value of an area, and may help focus 
conservation efforts on areas of high conservation value for certain 
species. Any information about the western yellow-billed cuckoo that 
reaches a wide audience, including parties engaged in conservation 
activities, is valuable. The designation of critical habitat may also 
inform implementation of some Federal laws such as the Clean Water Act. 
These laws analyze the potential for projects to significantly affect 
the environment. Critical habitat may signal the presence of sensitive 
habitat that could otherwise be missed in the review process for these 
other environmental laws.
    We have determined that there would be little educational and 
informational benefit gained from including Roosevelt Lake within the 
designation because this area is well known as an important area for 
southwestern willow flycatcher and western yellow-billed cuckoo 
management and recovery. For example, extensive southwestern willow 
flycatcher research has occurred at Roosevelt Lake through much of the 
late 1990s and early 2000s by USGS, Reclamation, and AGFD; the 
Roosevelt Dam HCP was developed in 2003; periodic news articles were 
published on the development of the Roosevelt Dam HCP; and the 
Roosevelt Lake area was proposed as southwestern willow flycatcher 
critical habitat in 2004 and excluded in 2005 and as western yellow-
billed cuckoo critical habitat in 2014. Additionally, since the mid-
1990s, SRP, USFS, Reclamation, AGFD, and the Service have met annually 
to discuss the status and ongoing management of the southwestern willow 
flycatcher and western yellow-billed cuckoo in the Roosevelt Lake area. 
Consequently, informational benefits informing the public and partners 
about the value of Roosevelt Lake for both listed bird species will 
continue into the future.

Benefits of Exclusion--Roosevelt Lake HCP

    The benefits of excluding the area within the high-water mark of 
Roosevelt Dam from being designated as critical habitat are 
considerable, and include the conservation measures described above 
(land acquisition, management, and habitat development) and those 
associated with implementing conservation through enhancing and 
developing partnerships.
    The implementation of the Roosevelt HCP has and will continue to 
help generate important status and trend information, acquire 
additional mitigation lands, and help on-the-ground management of 
Roosevelt Lake western yellow-billed cuckoos and their habitat (SRP 
2012b, pp. 15-16). In addition to these specific western yellow-billed 
cuckoo conservation actions, the development and implementation of this 
HCP provides regular monitoring of western yellow-billed cuckoo 
habitat, distribution, and abundance over the 50-year permit.
    Because of the importance of the Roosevelt Lake conservation space 
for water storage, there is no expectation that any considerable 
development or changes to the landscape would result in reducing the 
overall water storage space, and therefore the overall ability to 
develop riparian vegetation.

[[Page 20909]]

Roosevelt Dam operates in a way that continues to move water out of the 
reservoir to downstream lakes and canals in order to continuously 
create water storage conservation space at Roosevelt Lake, and 
therefore area for riparian vegetation and western yellow-billed cuckoo 
habitat to grow. The dynamic lake levels, similar to river systems, are 
important for the creation and maintenance of abundant western yellow-
billed cuckoo habitat at this location.
    Roosevelt Dam operations, implemented through the HCP permit 
continue to sustain local populations of western yellow-billed cuckoo 
by sustaining suitable habitat for the species. Western yellow-billed 
cuckoo populations have persisted within the high water mark at 
Roosevelt Lake throughout increases and decreases in water storage as 
well as along streams adjacent to Roosevelt Lake (Salt River, Tonto 
Creek, Pinal Creek, and Cherry Creek). The expanding and contracting 
western yellow-billed cuckoo habitat within the lake combined with 
dynamic habitat along adjacent streams support the overall western 
yellow-billed cuckoo population within the Roosevelt Lake area.
    Failure to exclude Roosevelt Lake could be a disincentive for other 
entities contemplating partnerships, as it would be perceived as a way 
for the Service to impose additional regulatory burdens once 
conservation strategies have already been agreed to through our 
permitting process. Private entities are motivated to work with the 
Service collaboratively to develop voluntary HCPs because of the 
regulatory certainty provided by an incidental take permit under 
section 10(a)(1)(B) of the Act with the ``No Surprises'' assurances. 
This collaboration often provides greater conservation benefits than 
could be achieved through strictly regulatory approaches, such as 
critical habitat designation. The conservation benefits resulting from 
this collaborative approach are built upon a foundation of mutual trust 
and understanding. Excluding this area from critical habitat will help 
promote and honor that trust by providing greater certainty for 
permittees that once appropriate conservation measures have been agreed 
to and consulted on for the western yellow-billed cuckoo that 
additional consultation will not be necessary. SRP has proven to be a 
valuable and responsible partner to the Service in leading, innovating, 
and implementing large- and small- scale conservation efforts in 
Arizona.
    Through the development of the Roosevelt Dam HCP, we have generated 
additional partnerships with SRP and its stakeholders by developing 
collaborative conservation strategies for the western yellow-billed 
cuckoo and the habitat upon which it depends for breeding, sheltering, 
foraging, migrating, and dispersing. The strategies within the 
Roosevelt HCP seek to achieve conservation goals for the western 
yellow-billed cuckoo and its habitat, and will achieve greater 
conservation benefit than the designation of critical habitat and 
multiple site-by-site, project-by-project, section 7 consultations, 
which is unlikely to require specific actions. Continued cooperative 
relations with SRP and its stakeholders are expected to influence other 
future partners. The benefits of excluding lands within the Roosevelt 
Lake HCP area from critical habitat designation include recognizing the 
value of conservation benefits associated with HCP actions; encouraging 
actions that benefit multiple species; encouraging local participation 
in development of new HCPs; and facilitating the cooperative activities 
provided by the Service to landowners, communities, and counties in 
return for their voluntary adoption of the HCP. Concerns over perceived 
added regulation potentially imposed by critical habitat could harm 
this collaborative relationship.
    Another benefit of excluding Roosevelt Lake from critical habitat 
includes a small reduction in administrative costs associated with 
engaging in the critical habitat portion of section 7 consultations. 
Administrative costs include time spent in meetings, preparing letters 
and biological assessments, and in the case of formal consultations, 
the development of the critical habitat component of a biological 
opinion.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Roosevelt 
Lake HCP

    We have determined that the benefits of exclusion of the 
conservation space of Roosevelt Lake below 2,151 ft (655 m) in 
elevation from the designation of western yellow-billed cuckoo critical 
habitat on Federal land managed by the USFS, as identified in the 
Roosevelt Dam HCP, outweigh the benefits of inclusion because current 
dam operations and management, and implementation of conservation 
actions maintain, protect, and conserve western yellow-billed cuckoo 
habitat. In our determination, we considered and found that the HCP 
meets our criteria for exclusion for HCPs (see Private or Other Non-
Federal Conservation Plans Related to Permits Under Section 10 of the 
Act). As a result, we weighed the benefits of including these lands as 
critical habitat with an operative HCP and management by the USFS, and 
the same situation without critical habitat.
    The benefits of designating critical habitat for the western 
yellow-billed cuckoo at Roosevelt Lake are relatively low in comparison 
to the benefits of exclusion. We find that including Roosevelt Lake as 
critical habitat would result in very minimal, if any, additional 
benefits to the western yellow-billed cuckoo. Roosevelt Dam operations 
will continue to foster the maintenance, development, and necessary 
recycling of habitat for the western yellow-billed cuckoo in the long 
term due to the dynamic nature of water storage and delivery. USFS 
management of lands surrounding the lake ensures the maintenance and 
development of western yellow-billed cuckoo habitat per the HCP. As a 
result, we anticipate that formal section 7 consultations conducted on 
critical habitat would only likely result in discretionary conservation 
recommendations.
    The benefits of excluding Roosevelt Lake from inclusion as critical 
habitat are considerable. Excluding Roosevelt Lake would continue to 
help foster development of future HCPs and strengthen our partnership 
with Roosevelt HCP permittees and stakeholders. Excluding Roosevelt 
Lake also eliminates regulatory uncertainty associated with the 
permittees' HCP and the operation of Roosevelt Dam for water storage 
and flood control. The conservation benefits of implementing the 
Roosevelt HCP are considerable and include significant acquisition and 
management of western yellow-billed cuckoo habitat, creation of western 
yellow-billed cuckoo habitat adjacent to Roosevelt Lake, on-the-ground 
protection of western yellow-billed cuckoo habitat, and long-term 
monitoring of western yellow-billed cuckoo habitat and territories. 
These conservation measures are substantial and will result in greater 
western yellow-billed cuckoo conservation benefits than what could be 
accomplished from a project-by-project evaluation through the 
incremental benefits of a critical habitat designation. Also, excluding 
Roosevelt Lake will eliminate some additional, but minimal, 
administrative effort and cost during the consultation process pursuant 
to section 7 of the Act.
    After weighing the benefits of including Roosevelt Lake as western 
yellow-billed cuckoo critical habitat against the benefit of exclusion, 
we have concluded that the benefits of excluding

[[Page 20910]]

the conservation space of Roosevelt Lake below an elevation 2,151 ft 
(655 m), underneath the coverage of the Roosevelt HCP and with the 
support of USFS management, outweigh those that would result from 
designating this area as critical habitat.
    As mentioned above, during development of the western yellow-billed 
cuckoo critical habitat designation, SRP requested that all of their 
western yellow-billed cuckoo mitigation properties purchased before the 
publication of our final critical habitat designation, be designated as 
critical habitat. The mitigation properties are not located within the 
Roosevelt lakebed, and may benefit from section 7 consultation on their 
management. Therefore, based upon the comments received from SRP and 
the likely benefit of future section 7 consultation, the mitigation 
properties acquired by SRP along the San Pedro, Gila, and Verde Rivers 
are included in this final designation as western yellow-billed cuckoo 
critical habitat.

Exclusion Will Not Result in Extinction of the Species--Roosevelt Lake 
HCP

    We find that the exclusion of the conservation space of Roosevelt 
Lake will not lead to the extinction of the western yellow-billed 
cuckoo, nor hinder its recovery because Roosevelt Dam operations 
combined with the preservation of open space within the lake and USFS 
land management under the HCP will ensure the long-term persistence and 
protection of western yellow-billed cuckoo habitat at Roosevelt Lake. 
In addition, as discussed above under Effects of Critical Habitat 
Designation Section 7 Consultation, if a Federal action or permitting 
occurs, the known presence of western yellow-billed cuckoos or their 
habitat would require evaluation under the jeopardy standard of section 
7 of the Act, even absent the designation of critical habitat, and thus 
will protect the species against extinction. We determined in our 
intra-Service section 7 biological opinion for the issuance of the 
Roosevelt HCP permit that, while Roosevelt Dam operations will cause 
incidental take due to operations that cause fluctuations in habitat 
abundance and quality, reservoir operations also create a dynamic 
environment that fosters the long-term persistence of habitat. It was 
estimated that during the life of the permit, an average amount of 
habitat to support 6 western yellow-billed cuckoo territories would be 
present throughout the life of the 50-year permit and even in a worst 
case flood event with maximum water storage, 22 territories could 
persist. USFS management has continued to foster the maintenance and 
development of western yellow-billed cuckoo habitat through land 
management actions that reduce threats to the species habitat. We have 
therefore excluded approximately 489 ac (198 ha) from Unit 12 (AZ-10, 
Tonto Creek) and 2,009 ac (813 ha) from Unit 23 (AZ-21, Salt River) 
from the final critical habitat designation.

Tribal Lands

    Several Executive Orders, Secretarial Orders, and policies concern 
working with Tribes. These guidance documents generally confirm our 
trust responsibilities to Tribes, recognize that Tribes have sovereign 
authority to control tribal lands, emphasize the importance of 
developing partnerships with tribal governments, and direct the Service 
to consult with Tribes on a government-to-government basis.
    A joint Secretarial Order that applies to both the Service and the 
National Marine Fisheries Service (NMFS), Secretarial Order 3206, 
American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, 
and the Endangered Species Act (June 5, 1997) (S.O. 3206), is the most 
comprehensive of the various guidance documents related to tribal 
relationships and Act implementation, and it provides the most detail 
directly relevant to the designation of critical habitat. In addition 
to the general direction discussed above, S.O. 3206 explicitly 
recognizes the right of Tribes to participate fully in the listing 
process, including designation of critical habitat. The Order also 
states: ``Critical habitat shall not be designated in such areas unless 
it is determined essential to conserve a listed species. In designating 
critical habitat, the Services shall evaluate and document the extent 
to which the conservation needs of the listed species can be achieved 
by limiting the designation to other lands.'' In light of this 
instruction, when we undertake a discretionary section 4(b)(2) 
exclusion analysis, we will always consider exclusions of tribal lands 
under section 4(b)(2) of the Act prior to finalizing a designation of 
critical habitat, and will give great weight to tribal concerns in 
analyzing the benefits of exclusion.
    However, S.O. 3206 does not preclude us from designating tribal 
lands or waters as critical habitat, nor does it state that tribal 
lands or waters cannot meet the Act's definition of ``critical 
habitat.'' We are directed by the Act to identify areas that meet the 
definition of ``critical habitat'' (i.e., areas occupied at the time of 
listing that contain the essential physical or biological features that 
may require special management or protection and unoccupied areas that 
are essential to the conservation of a species), without regard to 
landownership. While S.O. 3206 provides important direction, it 
expressly states that it does not modify the Secretaries' statutory 
authority.
Unit 7 (AZ-5) Upper Verde River; Unit 9 (AZ-7) Beaver Creek; and Unit 
10 (AZ-8) Lower Verde River and West Clear Creek--Yavapai-Apache Nation
    We identified 534 ac (216 ha) of critical habitat that occurs on 
Yavapai-Apache Nation lands within portions of the Verde River, Beaver 
Creek, and West Clear Creek (Unit 7: AZ-5, Upper Verde River; Unit 9: 
AZ-7, Beaver Creek; and Unit 10: AZ-8, Lower Verde River and West Clear 
Creek). The Yavapai-Apache Nation completed a Southwestern Willow 
Flycatcher Management Plan in 2005, and updated their plan in 2012 
(Yavapai-Apache Nation 2012, entire). The plan was originally developed 
for the southwestern willow flycatcher but has been revised to include 
western yellow-billed cuckoo.
    Prior to the incursion of non-Indians into their territory, the 
Yavapai-Apache Nation notes that their people lived and prospered for 
many centuries along the Verde River and its tributaries without 
depleting the river system or harming its riparian habitat and the many 
plant and animal species it supports (Montgomery & Interpreter, PLC 
2020, p. 2). Today, the Yavapai-Apache Nation Reservation is only a 
small portion of lands considered as historical Yavapai-Apache Nation 
lands and currently totals a little over 1,800 ac (728 ha) in Arizona. 
The Verde River and its tributaries serve as a primary source of the 
Nation's water supply and is integral in the preservation of the 
Nation's values. The Nation has implemented strong conservation 
measures on the Reservation to preserve the Verde River for the benefit 
of all species and to protect the practices of the Nation. The Yavapai-
Apache Nation is aware of the threats facing the Verde River and 
adjacent lands and their impacts on the riparian habitat and food 
availability as well as its suitability for western yellow-billed 
cuckoo nesting, migrating, food, cover, and shelter (Montgomery & 
Interpreter, PLC 2020, p. 2).
    The Nation continues to preserve those portions of the Verde River, 
Beaver Creek, and West Clear Creek under its jurisdiction along with 
the plants and animals associated with the river. On June 15, 2006, the 
Nation enacted Tribal Resolution No. 46-2006 formally designating a 
``Riparian

[[Page 20911]]

Conservation Corridor'' extending from the center of the River outward 
for 300 lateral ft (91 lateral m) on either side of the bank full stage 
of the Verde River (Yavapai-Apache Nation 2006, entire; Montgomery & 
Interpreter, 2020 PLC, pp. 5-6). This resolution essentially codified 
in Tribal law certain land use restrictions and management goals for 
the Verde River that had long been in place on the Reservation. Within 
the Riparian Conservation Corridor, those activities that are harmful 
to the health of the riparian area are discouraged or prohibited 
outright in order to protect the corridor's natural habitat and the 
animal and plant species that live, breed, rest, and forage within the 
corridor, including the western yellow-billed cuckoo.
    The Nation has taken steps to protect western yellow-billed cuckoo 
habitat along the Verde River, Beaver Creek, and West Clear Creek 
through zoning, implementing tribal ordinances and code requirements.
    The purpose of the Nation's Flycatcher Management Plan as updated 
to include western yellow-billed cuckoo is to promote the physical and 
biological features that will maintain southwestern willow flycatcher 
and western yellow-billed cuckoo habitat. The strategy of the plan is 
not to allow any net loss or permanent impacts to western yellow-billed 
cuckoo habitat by implementing measures from the Service's Southwestern 
Willow Flycatcher Recovery Plan. Recreation and access to riparian 
areas will be managed to ensure no net loss of habitat. Fire within 
riparian areas will be suppressed and vegetation managed by reducing 
fire risks. The Nation will cooperate with the Service to monitor and 
survey habitat for breeding and migrating western yellow-billed 
cuckoos, conduct research, and manage habitat.
    Since 2005, the Yavapai-Apache Nation has concluded that through 
implementation of their plan, there has been no net loss of western 
yellow-billed cuckoo habitat. Since 2005, no cattle grazing has 
occurred within the Verde River corridor. If any future grazing is 
permitted, it will be conducted appropriately with fences, and in a 
manner to protect western yellow-billed cuckoo habitat quality. The 
Nation has also installed measurement devices to evaluate the depth of 
the Verde River groundwater in order to address river flows necessary 
to maintain or improve the riparian habitat quality (Montgomery & 
Interpreter 2020 PLC pp. 7-8). Also, no new access roads or recreation 
sites have been created. Similarly, any new housing areas have been 
directed to avoid construction within the river corridor.
    The Yavapai-Apache Nation has conducted continued education, 
information gathering, and partnering and emphasized the importance of 
protecting the Verde River within tribal youth education programs. The 
Yavapai-Apache Nation has also continued to strengthen its partnership 
with the Service by meeting and coordinating efforts on the Service's 
goals for conservation on the Verde River. The Nation has committed to 
cooperatively discussing and examining future projects with the Service 
that could impact the western yellow-billed cuckoo or its habitat.

Benefits of Inclusion--Yavapai-Apache Nation Tribal Lands

    As discussed above under Effects of Critical Habitat Designation 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat. A critical habitat 
designation requires Federal agencies to consult on whether their 
activity would destroy or adversely modify critical habitat to the 
point where recovery could not be achieved.
    We have conducted informal consultations with agencies implementing 
actions on tribal lands, provided tribes technical assistance on 
project implementation, and the Corps has coordinated with tribes and 
pueblos on projects within the area. However, overall since listing of 
the southwestern willow flycatcher as endangered in 1995 and the 
western yellow-billed cuckoo in 2014 as threatened, formal section 7 
consultations have been rare on tribal lands. Because of how tribes and 
pueblos have chosen to manage and conserve their lands and the lack of 
past section 7 consultation history, we do not anticipate a noticeable 
increase in section 7 consultations in the future, nor that such 
consultations would significantly change the current management of 
western yellow-billed cuckoos or its habitat. Therefore, the effect of 
a critical habitat designation on these lands is minimized.
    Were we to designate critical habitat on these tribal lands, our 
section 7 consultation history indicates that there may be some, but 
few, regulatory benefits to the western yellow-billed cuckoo. As 
described above, even with southwestern willow flycatchers and western 
yellow-billed cuckoos occurring on these tribal lands, the frequency of 
formal section 7 consultations has been rare. Projects initiated by 
Federal agencies in the past were associated with maintenance of 
rights-of-way or water management such as those initiated by Federal 
Highway Administration or Reclamation. When we review projects 
addressing the western yellow-billed cuckoo pursuant to section 7 of 
the Act in Arizona, we commonly examine conservation measures 
associated with the project for consistency with strategies described 
within the Southwestern Willow Flycatcher Recovery Plan due to the two 
species overlapping and using similar habitat. Where there is 
consistency with managing habitat and implementing conservation 
measures recommended in the recovery plan, it would be unlikely that a 
consultation would result in a determination of adverse modification of 
critical habitat. Therefore, when the threshold for adverse 
modification is not reached, only additional conservation 
recommendations could result out of a section 7 consultation, but such 
measures would be discretionary on the part of the Federal agency.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to inform and educate 
landowners and the public regarding the potential conservation value of 
an area, and it may help focus management efforts on areas of high 
value for certain species. Any information about the western yellow-
billed cuckoo that reaches a wide audience, including parties engaged 
in conservation activities, is valuable. However, the southwestern 
willow flycatcher has been listed since 1995, and western yellow-billed 
cuckoo has been a candidate species since 2001. As a result the 
Yavapai-Apache Nation has been and is currently working with the 
Service to conserve southwestern willow flycatcher and western yellow-
billed cuckoo habitat, participate in working groups, and exchange 
management information. These regulatory developments already ensure 
that the Yavapai-Apache Nation and others are fully aware of the 
importance of listed riparian bird habitat and conservation. Given that 
these regulatory actions have already informed the public about the 
value of these areas and helped to focus potential conservation 
actions, the educational benefits from designating critical habitat 
would be small.

[[Page 20912]]

    Another possible benefit of the designation of critical habitat is 
that it may also affect the implementation of Federal laws, such as the 
Clean Water Act. These laws require analysis of the potential for 
proposed projects to significantly affect the environment. Critical 
habitat may signal the presence of sensitive habitat that could 
otherwise be missed in the review process for these other environmental 
laws.
    Finally, there is the possible benefit that additional funding 
could be generated for habitat improvement by an area being designated 
as critical habitat. Some funding sources may rank a project higher if 
the area is designated as critical habitat. Tribes or pueblos often 
seek additional sources of funding in order to conduct wildlife-related 
conservation activities. Therefore, having an area designated as 
critical habitat could improve the chances of receiving funding for 
southwestern willow flycatcher and western yellow-billed cuckoo 
habitat-related projects. However, areas where nesting, migrating, 
dispersing, or foraging western yellow-billed cuckoos occur, as is the 
case here, may also provide benefits when projects are evaluated for 
receipt of funding.
    Therefore, because of the development and implementation of a 
management plan, habitat conservation, rare initiation of formal 
section 7 consultations, the occurrence of breeding and migrant western 
yellow-billed cuckoos on tribal lands, and overall coordination with 
tribes on western yellow-billed cuckoo related issues, it is expected 
that there may be some, but limited, benefits from including these 
tribal lands in a western yellow-billed cuckoo critical habitat 
designation. The principal benefit of any designated critical habitat 
is that activities in and affecting such habitat require consultation 
under section 7 of the Act. Such consultation would ensure that 
adequate protection is provided to avoid destruction or adverse 
modification of critical habitat.

Benefits of Exclusion--Yavapai-Apache Nation Tribal Lands

    The benefits of excluding the Yavapai-Apache Nation lands from 
designated critical habitat include: (1) Our deference to the Tribe to 
develop and implement conservation and natural resource management 
plans for their lands and resources, which includes benefits to the 
western yellow-billed cuckoo and its habitat that might not otherwise 
occur; (2) the continuance and strengthening of our effective working 
relationships with the Tribe to promote the conservation of the western 
yellow-billed cuckoo and its habitat; and (3) the maintenance of 
effective partnerships with the Tribe and working in collaboration and 
cooperation to promote additional conservation of the western yellow-
billed cuckoo and their habitat.
    During the development of the western yellow-billed cuckoo critical 
habitat proposal (and coordination for other critical habitat 
proposals) and other efforts such as implementing measures identified 
in the Southwestern Willow Flycatcher Recovery Plan (applicable to 
western yellow-billed cuckoos in central Arizona), we have met and 
communicated with the Yavapai-Apache Nation to discuss how they might 
be affected by the regulations associated with listing and designating 
critical habitat for the western yellow-billed cuckoo. As such, we have 
established a beneficial relationship to support western yellow-billed 
cuckoo conservation. As part of our relationship, we have provided 
technical assistance to the Yavapai-Apache Nation to develop measures 
to conserve the western yellow-billed cuckoo and their habitat on their 
lands. These measures are contained within the management plan 
developed by the Yavapai-Apache Nation. We have determined that the 
Yavapai-Apache Nation should be the governmental entity to manage and 
promote western yellow-billed cuckoo conservation on their lands. 
During our coordination efforts with the Yavapai-Apache Nation, we 
recognized and endorsed their fundamental right to provide for tribal 
resource management activities, including those relating to riparian 
habitat.
    As stated above, the Yavapai-Apache Nation has developed and 
implemented a management plan specific to western yellow-billed cuckoo 
and its habitat. The Yavapai-Apache Nation has expressed that their 
lands, and specifically riparian habitat, are connected to their 
cultural and religious beliefs, and as a result they have a strong 
commitment and reverence toward its stewardship and conservation and 
have common goals with the Service on species and habitat conservation. 
The management plan identifies actions to maintain, improve, and 
preserve riparian habitat. The Yavapai-Apache Nation has also 
implemented a review processes for activities occurring in riparian 
zones and restricted or limited certain actions that would impact 
resources from occurring or implement conservation measures to 
minimize, or eliminate adverse impacts. Overall, the commitments toward 
management of western yellow-billed cuckoo habitat by the Yavapai-
Apache Nation likely accomplish greater conservation than would be 
available through the implementation of a designation of critical 
habitat on a project-by-project basis.
    The designation of critical habitat on Yavapai-Apache Nation lands 
would be expected to have an adverse impact on our working relationship 
with the Nation. The designation of critical habitat would be viewed as 
an intrusion and impact their sovereign abilities to manage natural 
resources in accordance with their own policies, customs, and laws. 
These impacts include, but are not limited to: (1) Interfering with the 
sovereign and constitutional rights of the Nation to protect and 
control its own resources on the Reservation; (2) undermining the 
positive and effective government-to-government relationship between 
the Nation and the Service--a relationship that serves to protect 
federally listed species and their habitat; and (3) hampering or 
confusing the Nation's own long-standing protections for the Verde 
River and its habitat. The perceived restrictions of a critical habitat 
designation could have a damaging effect on coordination efforts, 
possibly preventing actions that might maintain, improve, or restore 
habitat for the western yellow-billed cuckoo and other species. For 
these reasons, we have determined that our working relationships with 
the Nation would be better maintained if we excluded their lands from 
the designation of western yellow-billed cuckoo critical habitat. We 
view this as a substantial benefit since we have developed a 
cooperative working relationship with the Yavapai-Apache Nation for the 
mutual benefit of the western yellow-billed cuckoo and other endangered 
and threatened species.
    In addition, we anticipate future management plans to include 
additional conservation efforts for other listed species and their 
habitats may be hampered if critical habitat is designated on tribal 
lands being managed for sensitive species conservation. We have 
determined that many other tribes and pueblos are willing to work 
cooperatively with us and others to benefit other listed and sensitive 
species, but only if they view the relationship as mutually beneficial. 
Consequently, the development of future voluntarily management actions 
for other listed species may be compromised if these tribal lands are 
designated as critical habitat for the western yellow-billed cuckoo. 
Thus, a benefit of excluding these lands would be future conservation 
efforts that

[[Page 20913]]

would benefit other listed or sensitive species.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Yavapai-
Apache Nation Tribal Lands

    The benefits of including Yavapai-Apache Nation tribal lands in the 
critical habitat designation are limited to the incremental benefits 
gained through the regulatory requirement to consult under section 7 
and consideration of the need to avoid adverse modification of critical 
habitat, agency and educational awareness, potential additional grant 
funding, and the implementation of other law and regulations. However, 
due to the rarity of Federal actions resulting in formal section 7 
consultations, the benefits of a critical habitat designation are 
minimized. In addition, the benefits of consultation are further 
minimized because any conservation measures which may have resulted 
from consultation are already provided through other mechanisms, such 
as (1) the conservation benefits to the western yellow-billed cuckoo 
and their habitat from implementation of the Yavapai-Apache Nation 
management plans; and (2) the maintenance of effective collaboration 
and cooperation to promote the conservation of the southwestern willow 
flycatcher and western yellow-billed cuckoo and their habitat.
    Because the Yavapai-Apache Nation has developed a specific 
management plan, has been involved with the critical habitat 
designation process, and is aware of the value of their lands for 
western yellow-billed cuckoo conservation, the educational benefits of 
a western yellow-billed cuckoo critical habitat designation are also 
minimized.
    By allowing the Yavapai-Apache Nation to implement its own resource 
conservation programs it gives the Nation the opportunity to manage 
their natural resources to benefit riparian habitat for the western 
yellow-billed cuckoo, without the perception of Federal Government 
intrusion. This philosophy is also consistent with our published 
policies on Native American natural resource management. The exclusion 
of these areas will likely also provide additional benefits to the 
western yellow-billed cuckoo and other listed species that would not 
otherwise be available without the Service's maintaining a cooperative 
working relationships with the Yavapai-Apache Nation. The actions taken 
by the Nation to manage and protect habitat needed for western yellow-
billed cuckoo are above those conservation measures which may be 
required if the area was designated as critical habitat. As a result, 
we have determined that the benefits of excluding these tribal lands 
from critical habitat designation outweigh the benefits of including 
these areas.

Exclusion Will Not Result in Extinction--Yavapai-Apache Nation Tribal 
Lands

    We have determined that exclusion of the Yavapai-Apache Nation 
tribal lands from the critical habitat designation will not result in 
the extinction of the western yellow-billed cuckoo. We base this 
determination on several points. Firstly, as discussed above under 
Effects of Critical Habitat Designation Section 7 Consultation, if a 
Federal action or permitting occurs, the known presence of western 
yellow-billed cuckoos or their habitat would require evaluation under 
the jeopardy standard of section 7 of the Act, even absent the 
designation of critical habitat, and thus will protect the species 
against extinction. Secondly, the Yavapai-Apache Nation has a long term 
record of conserving species and habitat and is committed to protecting 
and managing southwestern willow flycatcher and western yellow-billed 
cuckoo habitat according to their cultural history, management plans, 
and natural resource management objectives. We have determined that 
this commitment accomplishes greater conservation than would be 
available through the implementation of a designation of critical 
habitat on a project-by-project basis. With the implementation of these 
conservation measures, based upon strategies developed in the 
management plan, we have concluded that this exclusion from critical 
habitat will not result in the extinction of the western yellow-billed 
cuckoo. Accordingly, we have determined that the benefits of excluding 
the Yavapai-Apache Nation tribal lands outweighs the benefits of their 
inclusion, and the exclusion of these lands from the designation will 
not result in the extinction of the species. As a result, we are 
excluding Yavapai-Apache Nation tribal lands within Unit 7 (AZ-5) Upper 
Verde River (191 ac (77 ha)); Unit 9 (AZ-7) Beaver Creek (3 ac (1 ha)); 
and Unit 10 (AZ-8) Lower Verde River and West Clear Creek (43 ac (17 
ha)) from this final designation.
Unit 22 (AZ-20) Gila River 1; Unit 27 (AZ-25) Aravaipa Creek; Unit 28 
(AZ-26) Gila River 2; and Unit 17 (AZ-15) Lower San Pedro and Gila 
Rivers--San Carlos Apache and Gila River Indian Community
    We identified approximately 12,533 ac (5,646 ha) for the western 
yellow-billed cuckoo as critical habitat on San Carlos Apache Tribe 
lands within Pinal, Gila, and Graham Counties, Arizona in Unit 22 
(10,183 ac (4,121 ha)), Unit 28 (1,436 ac (581 ha)), and Unit 17 (729 
ac (295 ha)). As a results of comments and coordinating with the Tribe, 
we received additional land ownership information that identified 
additional lands owned by the San Carlos Apache. The revised proposed 
designation should have identified an additional 185 ac (75 ha) along 
the Lower San Pedro River between Aravaipa Creek and the Gila River 
confluence in Unit 17 totaling 914 ac (370 ha). However, due additional 
revisions of the area considered as critical habitat between the 
revised proposed rule and this final designation, we removed areas 
upstream of Prophyry Gulch on the Gila River from Unit 17. Therefore, 
the total area of Tribal lands we are excluding in Unit 17 is 
approximately 445 ac (184 ha).
    The San Carlos Reservoir and surrounding land up to elevation 2,535 
ft (773 m)) is Federal land owned by the Bureau of Indian Affairs 
(BIA), which owns and operates the reservoir and Coolidge Dam site. The 
facilities are operated for storage and delivery of irrigation water as 
part of the Central Arizona Water Project. The dam and reservoir are 
surrounded by San Carlos Apache tribal lands. In our revised proposed 
rule, we misidentified the BIA lands as San Carlos Apache tribal lands. 
This ownership issue has been corrected in this final rule.
    Unit 22 (Gila River 1) and Unit 28 (Gila River 2) are located 
upstream of San Carlos Reservoir on the Gila River where it enter the 
reservoir and near where Eagle Creek enters the river respectively. 
Unit 17 (Lower San Pedro and Gila River) is located downstream of San 
Carlos Reservoir. Unit 27 (Aravaipa Creek) flows into the lower San 
Pedro River. When at full capacity the San Carlos Reservoir contains 
867,400 ac-ft (1.07 cubic km) of water, making it one of the largest 
lakes in Arizona. However, due to water demand and the seasonal, flashy 
nature of river flows into the reservoir result in the lake rarely 
fills and its water levels fluctuate dramatically (LCR MSCP 2004, p. 
12). Total dry-up of the reservoir has been recorded over 21 times with 
two of those times occurring in the last five

[[Page 20914]]

years (LCR MSCP 2004, p. 12; Reclamation 2020b, p. 2). Chronic drought 
since 1999 had also severely reduced inflows and reduced stored water 
available to downstream irrigators (LCR MSCP 2004, p. 13). Despite 
these extreme water fluctuations, normal water management operations, 
similar to what occurs at other reservoirs managed for irrigation and 
other water use, can periodically store and release large amounts of 
water that can mimic riverine flood flows within the lakebed, spreading 
water over a large area and stimulating the growth of vegetation such 
as willow and cottonwood, and helping to create and maintain western 
yellow-billed cuckoo habitat. Coolidge Dam and San Carlos Reservoir 
operation plays a role in the overall development, persistence, and 
recycling of western yellow-billed cuckoo habitat (Service 2004, pp. 
14-19). The San Carlos Apache Water Rights Settlement Act of 1992, 
allows the San Carlos Apache Tribe to exchange its Central Arizona 
Project water allocation for irrigation water releases from San Carlos 
Reservoir, and grants the Tribe permission to store exchanged water in 
the reservoir to maintain a permanent pool for fish, wildlife, and 
recreation (LCR MSCP 2004, p. 5). Although critical habitat is not 
being designated on the Gila River Indian Community (GRIC) lands, this 
Tribe is entitled to its allocation of water per existing agreements 
and exchanges and therefore has an interest in San Carlos management.
    The San Carlos Apache Recreation and Wildlife Department conduct 
surveys for western yellow-billed cuckoo, but population size and 
territory information are the proprietary information of the San Carlos 
Apache Tribe. An unknown number of western yellow-billed cuckoos occur 
upstream of the San Carlos Reservoir on the Gila River and on Eagle 
Creek within tribal boundaries although the habitat appears to be 
suitable. Western yellow-billed cuckoos occur downstream and upstream 
of the San Carlos Apache Reservation on the Gila River. Recent surveys 
in 2016 and 2019 confirm presence of a breeding western yellow-billed 
cuckoos on the Gila River and in Eagle Creek (Andreson 2016b, entire; 
WestLand Resources, Inc. 2019, entire; and Cornell Lab of Ornithology 
2020 (eBird data)). The San Carlos Apache parcels along lower Aravaipa 
Creek and the lower San Pedro River between Aravaipa Creek and the Gila 
River confluence are within a riparian corridor occupied by western 
yellow-billed cuckoos (Service 2013, pp. 349, 387). These small parcels 
are likely within the home range of foraging and breeding western 
yellow-billed cuckoos.
    The San Carlos Apache Tribe Recreation and Wildlife Department 
(SCATRWD) administers recreational use permits for nontribal members on 
San Carlos Apache tribal lands including the San Carlos lake bottom 
(SCATRWD 2009, entire). The SCATRWD has identified specific numbered 
areas or units of their land where their various rules and regulations 
apply. The SCATRWD administers fishing licenses for San Carlos 
Reservoir, but does not include Federal land within the conservation 
space of San Carlos Reservoir. Other than a store and marina located 
closer toward Coolidge Dam and adjacent to the reservoir, no paved 
roads, developed camping areas, or other designed recreation centers ae 
located within the San Carlos Reservoir conservation space.

Benefits of Inclusion--San Carlos Apache Tribe

    As discussed above under Effects of Critical Habitat Designation 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the costs or outcomes of the 
jeopardy analysis and the adverse modification analysis represents the 
regulatory benefit of critical habitat. A critical habitat designation 
requires Federal agencies to consult on whether their activity would 
destroy or adversely modify critical habitat to the point where 
recovery could not be achieved.
    The Gila River, Eagle Creek, and San Carlos Apache parcels are 
known to be occupied by western yellow-billed cuckoos, and therefore, 
if a Federal action or permitting occurs, there is a nexus for 
evaluation under section 7 of the Act. In addition, any water delivery 
or operational activities associated with Coolidge Dam by the BIA or 
Reclamation would also be subject to section 7 consultation for both 
the listing and critical habitat. For example, in 2003, Reclamation 
initiated consultation under section 7 of the Act, on a proposed water 
exchange between the San Carlos Apache Tribe and the Central Arizona 
Project. We completed a biological opinion (Service 2004, entire). The 
only consultation on Eagle Creek (near Unit 28 (Gila River 2)) involved 
an upstream fish barrier and a BLM grazing plan. However, our recent 
records show that no other formal consultation on western yellow-billed 
cuckoos has occurred for actions associated with San Carlos Reservoir 
or water operations. As described above, even with western yellow-
billed cuckoos occurring throughout this portion of the Gila River, the 
frequency of formal section 7 consultations for western yellow-billed 
cuckoo has been rare. We do not anticipate a noticeable increase in 
section 7 consultations in the future, nor any significant change to 
the current management of western yellow-billed cuckoos or its habitat 
resulting from consultations.
    Another important benefit of including lands in a critical habitat 
designation is that it can serve to educate landowners, agencies, 
tribes, and the public regarding the potential conservation value of an 
area, and may help focus conservation efforts on areas of high value 
for certain species. Any information about the western yellow-billed 
cuckoo that reaches a wide audience, including parties engaged in 
conservation activities, is valuable.
    However, the southwestern willow flycatcher has been listed since 
1995, and western yellow-billed cuckoo has been a candidate species 
since 2001. These regulatory developments already ensured that the San 
Carlos Apache Tribe, GRIC, Reclamation, BIA, State of Arizona and 
others are fully aware of the importance of San Carlos Reservoir to 
listed riparian bird habitat and conservation due to their involvement 
in the water transfer consultations. The GRIC is made up of members of 
both the Akimel O'odham (Pima) and the Pee-Posh (Maricopa) tribes. The 
Akimel O'otham name for the yellow-billed cuckoo is Kathgam. The Pee-
Posh general term for birds is 'chiyer. The GRIC and the San Carlos 
Apache Tribe have a long standing record for conserving habitat for 
sensitive species. Given that these regulatory actions have already 
informed the public about the value of these areas and helped to focus 
potential conservation actions, the educational benefits from 
designating critical habitat would be small.
    Another possible benefit of the designation of critical habitat is 
that it may also affect the implementation of Federal laws, such as the 
Clean Water Act. These laws require analysis of the potential for 
proposed projects to significantly affect the environment. Critical 
habitat may signal the presence of sensitive habitat that could 
otherwise be missed in the review process for these other environmental 
laws.

[[Page 20915]]

Benefits of Exclusion--San Carlos Apache Tribe

    The benefits of excluding the Gila River Indian Community and the 
San Carlos Apache Tribe lands from designated critical habitat include: 
(1) Our deference to the Tribe to develop and implement conservation 
and natural resource management plans for their lands and resources, 
which includes benefits to the western yellow-billed cuckoo and its 
habitat that might not otherwise occur; (2) the continuance and 
strengthening of our effective working relationships with the Tribe to 
promote the conservation of the western yellow-billed cuckoo and its 
habitat; and (3) the maintenance of effective partnerships with the 
Tribe and working in collaboration and cooperation to promote 
additional conservation of the western yellow-billed cuckoo and their 
habitat.
    The San Carlos Reservoir was acquired by BIA for the purpose of 
water storage for the Gila River Indian Community and the San Carlos 
Apache Tribe. Additionally, San Carlos Reservoir has become an 
important part of the San Carlos Apache Tribe society because it 
generates income through its recreational value, and nearby stores, 
lodging, and gaming facilities, thereby becoming a significant trust 
asset to both Gila River Indian Community and the San Carlos Apache 
Tribe. During the development of the southwestern willow flycatcher and 
western yellow-billed cuckoo critical habitat designations and recovery 
implementation, we have met and communicated with the GRIC and San 
Carlos Apache Tribe to discuss how they might be affected and measures 
they make take as a result of these actions. As a result, the San 
Carlos Apache Tribe submitted a Flycatcher Management Plan that is 
compatible with western yellow-billed cuckoo management (San Carlos 
Apache Tribe 2005, entire). During our communication with these tribes, 
we recognized and endorsed their fundamental right to provide for 
tribal resource management activities, including those relating to 
riparian habitat. The designation of critical habitat would be expected 
to have an adverse impact on the working relationship for conservation 
that we have developed with the GRIC and the San Carlos Apache Tribe. 
During our discussions and in the comments we received from the Tribes 
on the proposed designation of critical habitat, we were informed that 
critical habitat would be viewed as an intrusion on their sovereign 
abilities to manage natural resources in accordance with their own 
policies, customs, and laws, and in the case of GRIC, a potential 
impact to their federally mandated water deliveries. The perceived 
future restrictions (whether realized or not) of a critical habitat 
designation could have a damaging effect to coordination efforts, 
possibly preventing actions that might maintain, improve, or restore 
habitat for the western yellow-billed cuckoo and other listed species. 
For these reasons, we have determined that our working relationships 
with these the GRIC and San Carlos Apache Tribe would be better 
maintained if the critical habitat areas identified on tribal lands on 
the Gila River, Eagle Creek, lower San Pedro River and Federal lands 
within the San Carlos Reservoir owned by BIA and managed by the San 
Carlos Apache Tribe are excluded from the final designation. We view 
this as a substantial benefit since we have developed a cooperative 
working relationship with these tribes for the mutual benefit of 
western yellow-billed cuckoo conservation and other endangered and 
threatened species.

Benefits of Exclusion Outweigh the Benefits of Inclusion--San Carlos 
Apache Tribe

    The benefits of designating the areas identified as critical 
habitat within the Gila River, Eagle Creek, and Federal lands at San 
Carlos Reservoir on the San Carlos Apache Reservation; and the San 
Carlos Apache parcels on lower San Pedro River and Aravaipa Creek are 
limited to the incremental benefits gained through the regulatory 
requirement to consult under section 7 and consideration of the need to 
avoid adverse modification of critical habitat, as well as agency and 
educational awareness, and implementation of other laws and 
regulations. However, we have determined that these benefits are 
minimized because the species is listed as threatened and there is a 
lack of Federal actions occurring within the tribal lands and 
conservation space of San Carlos Reservoir; the operation of Coolidge 
Dam that supports western yellow-billed cuckoo habitat it influences; 
and the limited discretion BIA may have with Coolidge Dam operations. 
Because of this overall awareness by tribal, Federal, and State 
entities, we have determined that there is little educational benefit 
or support for other environmental laws and regulations attributable to 
western yellow-billed cuckoo critical habitat beyond those achieved 
from listing the species under the Act.
    The benefits of excluding these areas from designation as critical 
habitat also include the importance of our partnerships and working 
relationships with the San Carlos Apache and Gila River Indian 
Community, as well as our responsibility to afford reasonable 
protection of Native American trust assets. While San Carlos Reservoir 
is Federal land, the water resources it supports are essential 
components to both the San Carlos Apache Tribe and Gila River Indian 
Community. These tribes play an important partnership role in managing 
their lands for western yellow-billed cuckoo recovery. Without their 
cooperation, land management, and ability to share information, 
achieving western yellow-billed cuckoo conservation would be difficult 
on Tribal lands. Our conservation partnership with tribes also includes 
the advancement and support of our Federal Indian Trust obligations and 
the maintenance of effective collaboration and cooperation to promote 
the conservation of the western yellow-billed cuckoo and its habitat. 
In conclusion, we find that the benefits of excluding the Gila River, 
Eagle Creek, and San Carlos Reservoir Lakebed on San Carlos Apache 
Reservation; and San Carlos Apache parcels on lower San Pedro River and 
Aravaipa Creek from the final critical habitat designation outweigh the 
benefits of including these areas.

Exclusion Will Not Result in Extinction of the Species--San Carlos 
Apache Tribe

    We have determined that exclusion of critical habitat from the 
areas identified on the Gila River, Eagle Creek, and San Carlos 
Reservoir Lakebed on San Carlos Apache Reservation and San Carlos 
Apache parcels on lower San Pedro River and Aravaipa Creek will not 
result in the extinction of the western yellow-billed cuckoo. We base 
this determination on several points. Firstly, as discussed above under 
Effects of Critical Habitat Designation Section 7 Consultation, if a 
Federal action or permitting occurs, the known presence of western 
yellow-billed cuckoos or their habitat would require evaluation under 
the jeopardy standard of section 7 of the Act, even absent the 
designation of critical habitat, and thus will protect the species 
against extinction.
    Secondly, the San Carlos Apache are committed to protecting and 
managing for the western yellow-billed cuckoo and its habitat. We have 
determined that this commitment accomplishes greater conservation than 
would be available through the implementation of a designation of 
critical habitat on a project-by-project basis. We have determined that 
excluding these lands

[[Page 20916]]

will not result in the extinction of the western yellow-billed cuckoo 
and that these lands should be excluded under subsection 4(b)(2) of the 
Act because the benefits of exclusion from critical habitat for the 
western yellow-billed cuckoo outweigh the benefits of their inclusion. 
As a result, approximately 12,074 ac (4,886 ha) of San Carlos Apache 
Tribal Lands in Unit 22 (AZ-20) (10,183 ac (4,121 ha)); Unit 28 (AZ-26) 
(1,436 ac (581 ha)); and Unit 17 (AZ-15) (455 ac (184 ha)) on the Gila 
River, Eagle Creek, and San Carlos Reservoir Lakebed on San Carlos 
Apache Reservation, and San Carlos Apache parcels on lower San Pedro 
River and Aravaipa Creek are excluded from the final critical habitat 
designation.
Unit 65 (ID-1) Snake River 1--Shoshone-Bannock Tribal Land Management
    The Shoshone-Bannock tribal lands on the Fort Hall Reservation are 
located in Bingham, Bannock, Caribou, and Power Counties in Idaho, and 
approximately 2,527 ac (1,023 ha) of western yellow billed cuckoo 
critical habitat with Unit 65 has been identified on their lands. 
Riparian cottonwood forest occurs on approximately 1 percent of the 
Fort Hall Reservation and is primarily found along the Snake River in 
(the area known as) the Fort Hall bottoms. The Shoshone-Bannock Tribes 
have a demonstrated track record of maintaining these lands for natural 
resources through implementation of their Woodland Management Plan 
(WMP) and draft Integrated Resource Management Plan (IRMP).
    The WMP was finalized in 2008 and identifies management guidance 
for specific forest types to maintain long-term sustainability of 
woodlands on the Fort Hall Reservation. The plan identifies actions 
that contribute to the conservation of cottonwood forest habitat 
important to western yellow billed-cuckoos including reducing the risk 
of wildfire, increasing cottonwood regeneration, decreasing the spread 
of nonnative plants, and maintaining and improving riparian conditions. 
Specific habitat improvements undertaken as the result of the WMP 
include fencing riparian areas to exclude them from livestock grazing 
and completing noxious and invasive weed treatments.
    Additionally, the Shoshone-Bannock Tribes are implementing the 
draft IRMP which promotes an integrated review process for project 
planning and implementation across the tribe's resource departments. 
Although still in draft form, the IRMP has been used regularly with a 
great deal of success in delivering conservation as part of project 
reviews. The review process contains special consideration for any 
project occurring within the habitat for any special status or listed 
species and appropriate mitigation of potential impacts is developed by 
the Shoshone-Bannock Tribes' Fish and Wildlife Department. Significant 
changes in riparian cottonwood habitat conditions on the Fort Hall 
Reservation have not occurred over the past decade and existing habitat 
conditions are not expected to change, except for those positive 
projected habitat programs the Shoshone-Bannock Tribes are undertaking, 
in the near or long term.

Benefits of Inclusion--Tribal Lands on Fort Hall Reservation

    Effects of Critical Habitat Designation Section 7 Consultation, 
Federal agencies, in consultation with the Service, must ensure that 
their actions are not likely to jeopardize the continued existence of 
any listed species or result in the destruction or adverse modification 
of any designated critical habitat of such species. The difference in 
the outcomes of the jeopardy analysis and the adverse modification 
analysis represents the regulatory benefit and costs of critical 
habitat. A critical habitat designation requires Federal agencies to 
consult on whether their activity would destroy or adversely modify 
critical habitat to the point where recovery could not be achieved.
    Our section 7 consultation history within the Shoshone-Bannock 
Tribes show that since listing in 2014, no formal consultations have 
occurred for actions conducted on tribal lands. We have conducted an 
informal consultation with Reclamation implementing actions which 
affect tribal lands; however, overall, since listing in 2014, section 7 
consultations have been rare on tribal lands. Because of how the 
Shoshone-Bannock Tribes have chosen to manage and conserve their lands 
and the lack of past section 7 consultation history, we do not 
anticipate that the Shoshone-Bannock Tribes' actions would change 
considerably, generate a noticeable increase in section 7 
consultations, and that the consultations would significantly change 
the current management of western yellow-billed cuckoos or their 
habitat.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners and 
the public regarding the potential conservation value of an area, and 
it may help focus management efforts on areas of high value for certain 
species. Any information about the western yellow-billed cuckoo that 
reaches a wide audience, including parties engaged in conservation 
activities, is valuable. The Shoshone-Bannock Tribes are currently 
working to survey western yellow-billed cuckoo habitat, participate in 
working groups, and exchange management information. Because the 
Shoshone-Bannock Tribes have developed the WMP and are aware of the 
value of their lands for western yellow-billed cuckoo conservation, the 
educational benefits of a western yellow-billed cuckoo critical habitat 
designation are minimized.
    Another possible benefit of the designation of critical habitat is 
that it may inform implementation of Federal laws such as the Clean 
Water Act (33 U.S.C. 1251-1376). These laws require analysis of the 
potential for proposed projects to significantly affect the 
environment. Critical habitat may signal the presence of sensitive 
habitat that could otherwise be missed in the review process for these 
other environmental laws.
    Finally, there is the possible benefit that additional funding 
could be generated for habitat improvement by an area being designated 
as critical habitat. Some funding sources may rank a project higher if 
the area is designated as critical habitat. The Shoshone-Bannock Tribes 
have coordinated for additional sources of funding in order to conduct 
wildlife-related conservation activities. Therefore, having an area 
designated as critical habitat could improve the chances of receiving 
funding for western yellow-billed cuckoo habitat-related projects. 
However, areas where nesting, migrating, dispersing, or foraging 
western yellow-billed cuckoos occur, as is the case here, may also 
provide benefits when projects are evaluated for receipt of funding.
    Therefore, because of the implementation of the WMP and IRMP 
conservation, rare initiation of formal section 7 consultations, the 
occurrence of western yellow-billed cuckoo on the Fort Hall 
Reservation, and overall coordination with the Shoshone-Bannock Tribes 
on western yellow-billed cuckoo-related issues, it is expected that 
there may be some, but limited, benefits from including Fort Hall 
Reservation tribal lands in a western yellow-billed cuckoo critical 
habitat designation. The principal benefit of any designated critical 
habitat is that activities in and affecting such habitat require 
consultation under section 7 of the Act for adverse modification. Such 
consultation would still be required due to the species being listed as 
threatened regardless of the

[[Page 20917]]

designation due to the area being occupied by the species. However, 
with the Shoshone-Bannock Tribes implementing measures that conserve 
western yellow-billed cuckoo habitat combined with the rarity of 
Federal actions resulting in formal section 7 consultations, the 
benefits of a critical habitat designation are minimized.

Benefits of Exclusion--Tribal Lands on Fort Hall Reservation

    The benefits of excluding Shoshone-Bannock tribal lands on the Fort 
Hall Reservation from designated critical habitat include: (1) Our 
deference to the Tribe to develop and implement conservation and 
natural resource management plans for their lands and resources, which 
includes benefits to the western yellow-billed cuckoo and its habitat 
that might not otherwise occur; (2) the continuance and strengthening 
of our effective working relationships with the Tribe to promote the 
conservation of the western yellow-billed cuckoo and its habitat; and 
(3) the maintenance of effective partnerships with the Tribe and 
working in collaboration and cooperation to promote additional 
conservation of the western yellow-billed cuckoo and their habitat.
    During the development of the western yellow-billed cuckoo critical 
habitat proposal and in exercise of our trust responsibility to the 
Tribes, we have met and communicated with the Shoshone-Bannock Tribes 
to discuss how they might be affected by the regulations associated 
with western yellow-billed cuckoo management, recovery actions, and the 
designation of critical habitat. As such, we established relationships 
specific to western yellow-billed cuckoo conservation. As part of our 
relationship, we have provided technical assistance to the Shoshone-
Bannock Tribes to conserve the western yellow billed cuckoo and its 
habitat on their lands. The Shoshone-Bannock Tribes included measures 
within the WMP and IRMP that we have in our supporting record for this 
decision. We have determined that the Shoshone-Bannock Tribes should be 
the governmental entities to manage and promote western yellow-billed 
cuckoo conservation on their lands. During our communication with the 
Shoshone-Bannock Tribes, we recognized and endorsed their fundamental 
right to provide for tribal resource management activities, including 
those relating to riparian habitat.
    The Shoshone-Bannock Tribes' WMP and IRMP address western yellow-
billed cuckoo habitat. The proposed critical habitat segment we 
identified on lands managed by the Shoshone-Bannock Tribes are where 
western yellow-billed cuckoo have been recorded. The Shoshone-Bannock 
Tribes have expressed that their lands, and specifically riparian 
habitat, are connected to their cultural and religious beliefs, and as 
a result they have a strong commitment and reverence toward its 
stewardship and conservation. The WMP and IRMP identify actions that 
contribute to the conservation of cottonwood forest habitat important 
to western yellow billed-cuckoo including; reducing the risk of 
wildfire, increasing cottonwood regeneration, decreasing the spread of 
nonnative plants, and maintaining and improving riparian conditions. 
Specific habitat improvements undertaken as the result of the WMP 
include fencing riparian areas to exclude them from livestock grazing 
and completing noxious and invasive weed treatments. Through the IRMP 
the Shoshone-Bannock Tribes also have project-by-project review 
processes in place that allow evaluation and implementation of 
conservation measures to minimize, or eliminate adverse impacts. The 
Shoshone-Bannock Tribes have natural resource departments, which have 
experienced biologists, conduct western yellow-billed cuckoo surveys, 
and maintain databases on the quality of habitat throughout tribal 
lands and the status and occurrence of western yellow-billed cuckoo. 
Having this information available to the Shoshone-Bannock Tribes 
creates effective conservation through any project review process. The 
implementation of their WMP and IRMP has been coordinated and approved 
through appropriate tribal processes, such as tribal councils. Overall, 
these commitments toward management of riparian habitat likely 
accomplish greater conservation than would be available through the 
implementation of a designation of critical habitat on a project-by-
project basis.
    The designation of critical habitat on the Shoshone-Bannock Tribes 
lands would be expected to have an adverse impact on our working 
relationship with the Shoshone-Bannock Tribes. The perceived 
restrictions of a critical habitat designation could have a damaging 
effect on coordination efforts, possibly preventing actions that might 
maintain, improve, or restore habitat for the western yellow-billed 
cuckoo and other species. For these reasons, we have determined that 
our working relationships with the Shoshone-Bannock Tribes would be 
better maintained if we excluded their lands from the designation of 
western yellow-billed cuckoo critical habitat. We view this as a 
substantial benefit since we have developed a cooperative working 
relationship with the Shoshone-Bannock Tribes for the mutual benefit of 
western yellow-billed cuckoo conservation and other endangered and 
threatened species.
    We indicated in the proposed rule that our final decision regarding 
the exclusions of tribal lands under 4(b)(2) of the Act would consider 
tribal management and the recognition of their capability to 
appropriately manage their own resources, and the government-to-
government relationship of the United States with tribal entities (85 
FR 11458; February 27, 2020 p. 11512). We also acknowledged our 
responsibilities to work directly with tribes in developing programs 
for healthy ecosystems, that tribal lands are not subject to the same 
controls as Federal public lands, our need to remain sensitive to 
Indian culture, and to make information available to tribes (85 FR 
11458; February 27, 2020 p. 11504).
    We coordinated and communicated with the Shoshone-Bannock Tribes 
throughout the proposal of western yellow-billed cuckoo critical 
habitat by providing them information on implementation of section 
4(b)(2) of the Act; guidance and review; related documents, and public 
hearings; and our interest in consulting with them on a government-to-
government basis at their request. We also followed up our 
correspondence with telephone calls and electronic mail to assist with 
any questions. During the comment period, we received input from the 
Shoshone-Bannock Tribes expressing the view that designating western 
yellow-billed cuckoo critical habitat on tribal land would adversely 
affect the Service's working relationship with all tribes. We conclude 
that our working relationships with these tribes on a government-to-
government basis have been extremely beneficial in implementing natural 
resource programs of mutual interest, and that these productive 
relationships would be compromised by critical habitat designation of 
these tribal lands.
    We have determined that the Shoshone-Bannock Tribes are willing to 
work cooperatively with us and others to benefit listed species, but 
only if they view the relationship as mutually beneficial. 
Consequently, the development of future voluntarily management actions 
for other listed species may be compromised if these tribal lands are 
designated as critical habitat for the western yellow-billed cuckoo. 
Thus, a benefit of excluding these lands would be future

[[Page 20918]]

conservation efforts that would benefit other listed species.

Benefits of Exclusion Outweigh Benefits of Inclusion--Tribal Lands on 
Fort Hall Reservation

    The benefits of including the Shoshone-Bannock Tribes lands in the 
critical habitat designation are limited to the incremental benefits 
gained through the regulatory requirement to consult under section 7 
and consideration of the need to avoid adverse modification of critical 
habitat, agency and educational awareness, potential additional grant 
funding, and the implementation of other laws and regulations. However, 
due to the rarity of Federal actions resulting in formal section 7 
consultations, the benefits of a critical habitat designation are 
minimized. In addition, the benefits of consultation are further 
minimized because any conservation measures which may have resulted 
from consultation are already provided through other mechanisms, such 
as (1) the conservation benefits to the western yellow-billed cuckoo 
and their habitat from implementation of the Reservation's WMP and 
IRMP; and (2) the maintenance of effective collaboration and 
cooperation to promote the conservation of the western yellow-billed 
cuckoo and its habitat.
    Because the Shoshone-Bannock Tribes have developed specific 
management plans, has been involved with the critical habitat 
designation process, and is aware of the value of their lands for 
western yellow-billed cuckoo conservation, the educational benefits of 
a western yellow-billed cuckoo critical habitat designation are also 
minimized.
    The benefits of excluding these areas from being designated as 
western yellow-billed cuckoo critical habitat are more significant and 
include encouraging the continued implementation of Shoshone-Bannock 
Tribes management and conservation measures such as monitoring, survey, 
habitat management and protection, and fire-risk reduction activities 
that are planned for the future or are currently being implemented. 
These programs will allow the Shoshone-Bannock Tribes to manage their 
natural resources to benefit riparian habitat for the western yellow-
billed cuckoo, without the perception of Federal Government intrusion. 
This philosophy is also consistent with our published policies on 
Native American natural resource management. The exclusion of these 
areas will likely also provide additional benefits to the western 
yellow-billed cuckoo and other listed species that would not otherwise 
be available without the Service's maintaining a cooperative working 
relationship with the Shoshone-Bannock Tribes. The actions taken by the 
Shoshone-Bannock Tribes to manage and protect habitat needed for 
western yellow-billed cuckoo are above those conservation measures 
which may be required if the area was designated as critical habitat. 
In conclusion, we find that the benefits of excluding the Fort Hall 
Reservation lands (Shoshone-Bannock Tribes) in Idaho, from critical 
habitat designation outweigh the benefits of including these areas.

Exclusion Will Not Result in Extinction--Tribal Lands on Fort Hall 
Reservation

    We have determined that exclusion of the Shoshone-Bannock Tribal 
lands from the final critical habitat designation will not result in 
the extinction of the western yellow-billed cuckoo. We base this 
determination on several points. Firstly, as discussed above under 
Effects of Critical Habitat Designation Section 7 Consultation, if a 
Federal action or permitting occurs, the known presence of western 
yellow-billed cuckoos or their habitat would require evaluation under 
the jeopardy standard of section 7 of the Act, even absent the 
designation of critical habitat, and thus will protect the species 
against extinction. Secondly, the Shoshone-Bannock Tribes have 
committed to protecting and managing western yellow-billed cuckoo 
habitat according to their WMP and IRMP. We have determined that this 
commitment accomplishes greater conservation than would be available 
through the implementation of a designation of critical habitat on a 
project-by-project basis. With the implementation of these plans, we 
have concluded that this exclusion from critical habitat will not 
result in the extinction of the western yellow-billed cuckoo. 
Accordingly, we have determined that 2,527 ac (1,023 ha) of the Fort 
Hall Reservation tribal lands are excluded under subsection 4(b)(2) of 
the Act because the benefits of excluding these lands from critical 
habitat for the western yellow-billed cuckoo outweigh the benefits of 
their inclusion, and the exclusion of these lands from the designation 
will not result in the extinction of the species.
Unit 35 (NM-4) Upper Rio Grande 1--Ohkay Owingeh, NM
    Ohkay Owingeh is located just north of Espanola in Rio Arriba 
County New Mexico, and adjoins the lands of Santa Clara Pueblo. The 
Pueblo includes the southern or downstream end of the Velarde reach of 
the Rio Grande, and comprises the largest contiguous area of generally 
intact bosque, as well as the largest riparian area under the control 
of a single landowner, within the Velarde reach. On Ohkay Owingeh, we 
are excluding 1,313 ac (531 ha) of critical habitat.
    Dating back to 1993, upon observing the presence of the 
southwestern willow flycatcher, the Pueblo began restoring the bosque 
habitat and associated wetlands specifically for the southwestern 
willow flycatcher. Habitat within the Pueblo had been much degraded 
relative to historical conditions for two main reasons: (1) River 
channelization that has caused floodplain desiccation, cessation of 
overbank flooding, and disruption of geomorphological processes; and 
(2) intensive invasion by nonnative trees, primarily Russian olives. 
The increasing frequency and severity of fires in the Rio Grande 
bosque, accompanied by changes in vegetation and the water regime, 
underscores the urgency of the restoration needs.
    Ohkay Owingeh immediately began restoration/conservation projects 
to benefit the southwestern willow flycatcher in 1994, with 
restoration/conservation occurring over approximately 4 ac (1.6 ha) of 
Ohkay Owingeh lands. Since 1999, the Pueblo has initiated or completed 
a variety of restoration/conservation projects, including further 
wetland creation and expansion, southwestern willow flycatcher habitat 
enhancement with vegetation and open water, and removal of non-native 
vegetation with replacement of native vegetation. These projects are 
funded through various programs of the Environmental Protection Agency, 
Wildland Urban Interface/Collaborative Forest Restoration Program, 
Middle Rio Grande Endangered Species Act Collaborative Program, Service 
Partners for Fish and Wildlife Program, and the State of New Mexico; 
they affect 744 riparian ac (301 riparian ha) on the Pueblo with direct 
and indirect benefits to the southwestern willow flycatcher. The 
project implementations include conservation, monitoring, and 
management for the southwestern willow flycatcher into the future. 
These efforts contribute to the long term goals of recovery for the 
southwestern willow flycatcher. In addition to the habitat work, the 
Pueblo supports southwestern willow flycatcher surveys and nest 
monitoring on the Pueblo lands. Though past work has targeted 
southwestern willow flycatchers, restoration efforts also provide 
benefit to the western yellow-billed cuckoos. It is because of

[[Page 20919]]

their historical response to meet the needs of listed species as 
provided in the example above, that the Service concludes that Ohkay 
Owingeh will ensure conservation benefits to the western yellow-billed 
cuckoo on their lands. Ohkay Owingeh commented that the western yellow-
billed cuckoo will be incorporated into their Riparian and Bosque 
Habitat Restoration Management Plan, as was done for other listed 
species such as the New Mexico meadow jumping mouse (Zapus hudsonius 
luteus).

Benefits of Inclusion--Ohkay Owingeh

    As discussed above under Effects of Critical Habitat Designation 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat. A critical habitat 
designation requires Federal agencies to consult on whether their 
activity would destroy or adversely modify critical habitat to the 
point where recovery could not be achieved.
    Since 1993, the section 7 consultations involving Ohkay Owingeh for 
the southwestern willow flycatcher, New Mexico meadow jumping mouse, or 
western yellow-billed cuckoo have all been informal (with the exception 
of one formal consultation). Effects to the southwestern willow 
flycatcher, New Mexico meadow jumping mouse, and/or western yellow-
billed cuckoo from these projects have been insignificant and 
discountable because conservation measures have focused on restoration 
and management for the species and its habitat.
    Another possible benefit is that the designation of critical 
habitat can serve to educate the public regarding the potential 
conservation value of an area, and this may focus and contribute to 
conservation efforts by other parties by clearly delineating areas of 
high conservation value for certain species. Any information about the 
western yellow-billed cuckoo and its habitat that reaches a wide 
audience, including other parties engaged in conservation activities, 
would be considered valuable. However, the Pueblo is already working 
with the Service to address the habitat needs of the species. For these 
reasons, then, we have determined that designation of critical habitat 
would have few, if any, additional benefits beyond those that will 
result from continued consultation for the presence of the species.
    Another possible benefit of the designation of critical habitat is 
that it may also affect the implementation of Federal laws, such as the 
Clean Water Act. These laws require analysis of the potential for 
proposed projects to significantly affect the environment. Critical 
habitat may signal the presence of sensitive habitat that could 
otherwise be missed in the review process for these other environmental 
laws.

Benefits of Exclusion--Ohkay Owingeh

    The benefits of excluding the Pueblo from designated critical 
habitat are significant. We have determined that the significant 
benefits that would be realized by foregoing the designation of 
critical habitat on this area include: (1) Our deference to the Pueblo 
to develop and implement conservation and natural resource management 
plans for their lands and resources, which includes benefits to the 
western yellow-billed cuckoo and its habitat that might not otherwise 
occur; (2) the continuance and strengthening of our effective working 
relationships with the Pueblo to promote the conservation of the 
western yellow-billed cuckoo and its habitat; and (3) the maintenance 
of effective partnerships with the Pueblo and working in collaboration 
and cooperation to promote additional conservation of the western 
yellow-billed cuckoo and their habitat.
    We have determined that Ohkay Owingeh should be the governmental 
entity to manage and promote the conservation of the western yellow-
billed cuckoo on their land as indicated in Secretarial Order 3206; the 
President's memorandum of April 29, 1994, ``Government-to-Government 
Relations with Native American Tribal Governments'' (59 FR 22951); 
Executive Order 13175; and the relevant provision of the Departmental 
Manual of the Department of the Interior (512 DM 2).
    We find that other conservation benefits are provided to the Upper 
Rio Grande Unit and the western yellow-billed cuckoo and its habitat by 
excluding the Pueblo from the designation. For example, as part of 
maintaining a cooperative working relationship with the Pueblo, 
conservation benefits, including listed species' surveys, nest and/or 
habitat monitoring, and/or habitat restoration and enhancement have 
been possible. Ohkay Owingeh submitted comments on October 14, 2014, 
indicated that critical habitat would be viewed as an intrusion on 
their sovereign abilities to manage natural resources in accordance 
with their own policies, customs, and laws. To this end, we found that 
the Pueblo would prefer to work with us on a Government-to-Government 
basis. For these reasons, we have determined that our working 
relationship with the Pueblo would be maintained if they are excluded 
from the designation of critical habitat for the western yellow-billed 
cuckoo. We view this as a substantial benefit.
    Proactive voluntary conservation efforts have and will continue to 
promote the recovery of the western yellow-billed cuckoo. As mentioned 
above, the Pueblo is an important land manager in the Upper Rio Grande 
Unit. The consultation history, surveys, and conservation, restoration 
and management information historically submitted by the Pueblo 
documents that meaningful collaborative and cooperative work for listed 
species and their habitat will continue within their lands. These 
commitments demonstrate the willingness of the Pueblo to work 
cooperatively with us toward conservation efforts that will benefit the 
western yellow-billed cuckoo. The Pueblo has committed to several 
ongoing or future management, restoration, enhancement, and survey 
activities that may not occur with critical habitat designation. 
Therefore, we have determined that the results of these activities will 
promote long-term protection and conserve the western yellow-billed 
cuckoo and its habitat within the Pueblo lands. The benefits of 
excluding this area from critical habitat will encourage the continued 
cooperation and development of data-sharing and management plans. If 
this area is designated as critical habitat, we have determined that it 
is unlikely that sharing of information would occur.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Ohkay Owingeh

    The long-term goal of riparian management on Ohkay Owingeh is to 
make significant additions of wetland areas for listed species, as well 
as implement innovative restoration techniques, decrease fire hazards 
by restoring native vegetation, share information with other 
restoration practitioners, use 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.
    Based on their traditional beliefs and ties to the bosque area, the 
Pueblo continues to protect, conserve, and restore the riparian species 
and their habitat. As is demonstrated through their projects, the 
Pueblo has invested a

[[Page 20920]]

significant amount of ongoing time and effort to address the needs and 
recovery of the southwestern willow flycatcher. In addition, based on 
the long term goals of restoring additional wetland and native habitat, 
the Pueblo has shown that it is managing its resources to meet its 
traditional and cultural needs, while addressing the needs of listed 
species.
    Because the Pueblo has a lengthy history of managing and restoring 
habitat for sensitive species, has been involved with the critical 
habitat designation process, and is aware of the value of their lands 
for western yellow-billed cuckoo conservation, the educational benefits 
of a western yellow-billed cuckoo critical habitat designation are also 
minimized.
    In summary, the benefits of including the Pueblo in critical 
habitat are low, and are limited to insignificant educational benefits. 
The benefits of excluding these areas from designation as critical 
habitat for the western yellow-billed cuckoo are significant, and 
include encouraging the continued development and implementation of 
special management measures such as monitoring, surveys, enhancement, 
and restoration activities that the Pueblo plans for the future or is 
currently implementing. These activities and projects will allow the 
Pueblo to manage their natural resources to benefit the Upper Rio 
Grande Unit and the western yellow-billed cuckoo, without the 
perception of Federal Government intrusion. This philosophy is also 
consistent with our published policies on Native American natural 
resource management. The exclusion of this area will likely also 
provide additional benefits to the species that would not otherwise be 
available to encourage and maintain cooperative working relationships. 
We find that the benefits of excluding this area from critical habitat 
designation outweigh the benefits of including this area.

Exclusion Will Not Result in Extinction of the Species--Ohkay Owingeh

    We have determined that exclusion of the Pueblo land will not 
result in extinction of the species. Firstly, as discussed above under 
Effects of Critical Habitat Designation Section 7 Consultation, if a 
Federal action or permitting occurs, the known presence of western 
yellow-billed cuckoos or their habitat would require evaluation under 
the jeopardy standard of section 7 of the Act, even absent the 
designation of critical habitat, and thus will protect the species 
against extinction. Secondly, the Pueblo is committed to protecting and 
managing Pueblo lands and species found on those lands according to 
their tribal and cultural management plans and natural resource 
management objectives, which provide conservation benefits for the 
western yellow-billed cuckoo and its habitat. In short, the Pueblo is 
committed to greater conservation measures on their land than would be 
available through the designation of critical habitat. Accordingly, we 
have determined that the 1,313 ac (531 ha) of Ohkay Owingeh lands be 
excluded from the final critical habitat under subsection 4(b)(2) of 
the Act because the benefits of exclusion outweigh the benefits of 
inclusion and will not cause the extinction of the species.
Unit 36 (NM-5) Upper Rio Grande 2--Santa Clara Pueblo, NM
    On Santa Clara Pueblo, we proposed 141 ac (57 ac) of critical 
habitat within this unit in Rio Arriba County, New Mexico. The entire 
area is considered occupied at the time of listing. The Pueblo has 
joined with San Ildefonso Pueblo and Ohkay Owingeh to work with the 
Corps to complete large scale environmental restoration and floodplain 
management on their lands. As a result, Santa Clara Pueblo is already 
restoring all habitat proposed as critical habitat for western yellow-
billed cuckoos with the exception of 4 ac (1.6 ha) which are 
agricultural lands. We have a productive working relationship with 
Santa Clara Pueblo and coordinated with them during the critical 
habitat designation process.

Benefits of Inclusion--Santa Clara Pueblo

    As discussed above under Effects of Critical Habitat Designation 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat. A critical habitat 
designation requires Federal agencies to consult on whether their 
activity would destroy or adversely modify critical habitat to the 
point where recovery could not be achieved.
    Another possible benefit is that the designation of critical 
habitat can serve to educate the landowner and public regarding the 
potential conservation value of an area, and this may focus and 
contribute to conservation efforts by other parties by clearly 
delineating areas of high conservation value for certain species. Any 
information about the western yellow-billed cuckoo and its habitat that 
reaches a wide audience, including other parties engaged in 
conservation activities, would be considered valuable.
    Another possible benefit of the designation of critical habitat is 
that it may also affect the implementation of Federal laws, such as the 
Clean Water Act. These laws require analysis of the potential for 
proposed projects to significantly affect the environment. Critical 
habitat may signal the presence of sensitive habitat that could 
otherwise be missed in the review process for these other environmental 
laws.
    Finally, there is the possible benefit that additional funding 
could be generated for habitat improvement by an area being designated 
as critical habitat. Some funding sources may rank a project higher if 
the area is designated as critical habitat. Tribes or Pueblos often 
seek additional sources of funding in order to conduct wildlife-related 
conservation activities. Therefore, having an area designated as 
critical habitat could improve the chances of receiving funding for 
western yellow-billed cuckoo habitat-related projects.

Benefits of Exclusion--Santa Clara Pueblo

    The benefits of excluding the Pueblo from designated critical 
habitat are significant. The proposed critical habitat designation 
included areas of riparian woodland, or bosque, within the Pueblo 
boundaries. We have determined that the significant benefits that would 
be realized by foregoing the designation of critical habitat on this 
area include: (1) Our deference to the Pueblo to develop and implement 
conservation and natural resource management plans for their lands and 
resources, which includes benefits to the western yellow-billed cuckoo 
and its habitat that might not otherwise occur; (2) the continuance and 
strengthening of our effective working relationships with the Pueblo to 
promote the conservation of the western yellow-billed cuckoo and its 
habitat; and (3) the maintenance of effective partnerships with the 
Pueblo and working in collaboration and cooperation to promote 
additional conservation of the western yellow-billed cuckoo and their 
habitat.
    We have determined that Santa Clara Pueblo should be the 
governmental entity to manage and promote the conservation of the 
western yellow-billed cuckoo on their land as indicated in Secretarial 
Order 3206; Executive Order 13175; and the relevant provision

[[Page 20921]]

of the Departmental Manual of the Department of the Interior (512 DM 
2).
    We find that other conservation benefits are provided to the Upper 
Rio Grande Unit and the western yellow-billed cuckoo and its habitat by 
excluding the Pueblo from the designation. For example, the objective 
of Santa Clara Pueblo's management of their land is to protect, 
conserve, and promote the well-being of listed species and their 
associated habitats within the Pueblo's boundaries. As part of 
maintaining a cooperative working relationship with the Pueblo, 
conservation benefits, including listed species' surveys, nest and/or 
habitat monitoring, and/or habitat restoration and enhancement have 
been possible. In comments submitted by Santa Clara Pueblo on October 
13, 2014, we were informed that critical habitat would be viewed as 
unnecessary and offensive to impose extra regulatory burdens upon us 
when they are voluntarily and proactively managing their lands to 
provide benefit to the western yellow-billed cuckoo. The Pueblo would 
prefer to work with us on a Government-to-Government basis. For these 
reasons, we have determined that our working relationship with the 
Pueblo would be maintained if they are excluded from the designation of 
critical habitat for the western yellow-billed cuckoo. We view this as 
a substantial benefit.
    Proactive voluntary conservation efforts have and will continue to 
promote the recovery of the western yellow-billed cuckoo. As mentioned 
above, the Pueblo is an important land manager in the Upper Rio Grande 
Unit. The consultation conservation, restoration and management 
information historically submitted by the Pueblo documents that 
meaningful collaborative and cooperative work for listed species and 
their habitat will continue within their lands. These commitments 
demonstrate the willingness of the Pueblo to work cooperatively with us 
toward conservation efforts that will benefit the western yellow-billed 
cuckoo. The Pueblo has committed to several ongoing or future 
management, restoration, enhancement, and survey activities that may 
not occur with critical habitat designation. Therefore, we have 
determined that the results of these activities will promote long-term 
protection and conserve the western yellow-billed cuckoo and its 
habitat within the Pueblo lands. The benefits of excluding this area 
from critical habitat will encourage the continued cooperation and 
development of data-sharing and management plans. If this area is 
designated as critical habitat, we have determined that it is unlikely 
that sharing of information would occur.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Santa Clara 
Pueblo

    The benefits of including Pueblo in the critical habitat 
designation are limited to the incremental benefits gained through the 
regulatory requirement to consult under section 7 and consideration of 
the need to avoid adverse modification of critical habitat, agency and 
educational awareness, potential additional grant funding, and the 
implementation of other law and regulations. However, due to the rarity 
of Federal actions resulting in formal section 7 consultations, the 
benefits of a critical habitat designation are minimized. In addition, 
the Pueblo will continue to protect its bosque habitat and does not 
intend to develop the areas used by western yellow-billed cuckoo as 
critical habitat. Moreover, as part of their history, the Santa Clara 
Pueblo has conducted a variety of voluntary measures, restoration 
projects, and management actions to conserve riparian vegetation, 
including protecting riparian habitat from fire, maintaining native 
vegetation, and preventing habitat fragmentation. The Pueblo is already 
working with the Service to address the habitat needs of the species. 
This working relationship will be better maintained if Santa Clara 
Pueblo was excluded from the designation. We view this as a substantial 
benefit since we have developed a cooperative working relationship for 
the mutual benefit of endangered and threatened species, including the 
western yellow-billed cuckoo. Because the Pueblo has implemented 
habitat conservation and restoration efforts, and is aware of the value 
of their lands for western yellow-billed cuckoo conservation, the 
educational benefits of a western yellow-billed cuckoo critical habitat 
designation are also minimized. For these reasons, we have determined 
that designation of critical habitat would have few, if any, additional 
benefits beyond those that will result from the presence of the 
species.
    In summary, the benefits of including the Pueblo in critical 
habitat are low, and are limited to insignificant educational benefits. 
The benefits of excluding these areas from designation as critical 
habitat for the western yellow-billed cuckoo are significant, and 
include encouraging the continued development and implementation of 
special management measures such as monitoring, surveys, enhancement, 
and restoration activities that the Pueblo plans for the future or is 
currently implementing. These activities and projects will allow the 
Pueblo to manage their natural resources to benefit the Upper Rio 
Grande Unit and the western yellow-billed cuckoo, without the 
perception of Federal Government intrusion. This philosophy is also 
consistent with our published policies on Native American natural 
resource management. The exclusion of this area will likely also 
provide additional benefits to the species that would not otherwise be 
available to encourage and maintain cooperative working relationships. 
We find that the benefits of excluding this area from critical habitat 
designation outweigh the benefits of including this area.

Exclusion Will Not Result in Extinction of the Species--Santa Clara 
Pueblo

    We have determined that exclusion of the Pueblo land will not 
result in extinction of the species. Firstly, as discussed above under 
Effects of Critical Habitat Designation Section 7 Consultation, if a 
Federal action or permitting occurs, the known presence of western 
yellow-billed cuckoos or their habitat would require evaluation under 
the jeopardy standard of section 7 of the Act, even absent the 
designation of critical habitat, and thus will protect the species 
against extinction. Secondly, the Pueblo is committed to protecting and 
managing Pueblo lands and species found on those lands according to 
their tribal and cultural management plans and natural resource 
management objectives, which provide conservation benefits for the 
western yellow-billed cuckoo and its habitat. In short, the Pueblo is 
committed to greater conservation measures on their land than would be 
available through the designation of critical habitat. Accordingly, we 
have determined that the 141 ac (57 ha) of Santa Clara Pueblo lands are 
excluded under subsection 4(b)(2) of the Act because the benefits of 
exclusion outweigh the benefits of inclusion and will not cause the 
extinction of the species.
Unit 36 (NM-5) Upper Rio Grande 2--San Ildefonso Pueblo, NM
    San Ildefonso Pueblo, is located in Rio Arriba County New Mexico, 
and adjoins the lands of Santa Clara Pueblo. On San Ildefonso Pueblo, 
we proposed 1,032 ac (418 ha) of critical habitat.
    In 2011, an addendum to the Pueblo's 2005 Integrated Resource 
Management Plan (IRMP) was revised and adopted to provide for long term 
management of the Tribe's natural resources, including the southwestern 
willow flycatcher's habitat. The addendum to the Pueblo's IRMP 
specifically addresses measures to

[[Page 20922]]

protect southwestern willow flycatcher habitat based on the 
Southwestern Willow Flycatcher Recovery Plan (Service 2002, entire). 
While funding specific for IRMP implementation has not been fully 
secured unless surplus funds are available, the Pueblo has committed to 
the IRMPs implementation and the Addendum is now part of the Pueblo 
policy in this area. The Pueblo de San Ildefonso worked with the Corps 
to protect the southwestern willow flycatcher's habitat on tribal lands 
under agreements in place to serve that purpose. Though the western 
yellow-billed cuckoo has not been included in the IRMP, many management 
practices aid in the conservation of the western yellow-billed cuckoo. 
These include, but are not limited to, restoring adequate water-related 
elements to improve and expand the quality, quantity, and distribution 
of riparian habitat; retaining riparian vegetation in the floodplain 
and minimizing clearing of vegetation; and, managing livestock grazing 
and improving fences to prevent damage to riparian areas and increase 
riparian habitat quality and quantity. We expect the Pueblo to continue 
such conservation activity for the western yellow-billed cuckoo based 
on the Pueblo's commitment to natural resource protection and 
enhancement even if the southwestern willow flycatcher is delisted.

Benefits of Inclusion--San Ildefonso Pueblo

    As discussed above under Effects of Critical Habitat Designation 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat. A critical habitat 
designation requires Federal agencies to consult on whether their 
activity would destroy or adversely modify critical habitat to the 
point where recovery could not be achieved. Since listing, one 
consultation and conference for western yellow-billed cuckoo occurred 
in 2016. The consultation and conference was with Reclamation, who made 
a ``no effect'' determination on the western yellow-billed cuckoo and 
its proposed critical habitat in the Pojoaque Basin Regional Water 
System and Associated Connected Actions Biological Assessment and 
consultation number 02ENNM00-2016-I-0398.
    Another possible benefit is that the designation of critical 
habitat can serve to educate the public regarding the potential 
conservation value of an area, and this may focus and contribute to 
conservation efforts by other parties by clearly delineating areas of 
high conservation value for certain species. Any information about the 
western yellow-billed cuckoo and its habitat that reaches a wide 
audience, including other parties engaged in conservation activities, 
would be considered valuable.
    Another possible benefit of the designation of critical habitat is 
that it may also affect the implementation of Federal laws, such as the 
Clean Water Act. These laws require analysis of the potential for 
proposed projects to significantly affect the environment. Critical 
habitat may signal the presence of sensitive habitat that could 
otherwise be missed in the review process for these other environmental 
laws.
    Finally, there is the possible benefit that additional funding 
could be generated for habitat improvement by an area being designated 
as critical habitat. Some funding sources may rank a project higher if 
the area is designated as critical habitat. Tribes or Pueblos often 
seek additional sources of funding in order to conduct wildlife-related 
conservation activities. Therefore, having an area designated as 
critical habitat could improve the chances of receiving funding for 
western yellow-billed cuckoo habitat-related projects.

Benefits of Exclusion--San Ildefonso Pueblo

    The benefits of excluding the Pueblo from designated critical 
habitat are significant. We have determined that the significant 
benefits that would be realized by foregoing the designation of 
critical habitat on this area include: (1) Our deference to the Pueblo 
to develop and implement conservation and natural resource management 
plans for their lands and resources, which includes benefits to the 
western yellow-billed cuckoo and its habitat that might not otherwise 
occur; (2) the continuance and strengthening of our effective working 
relationships with the Pueblo to promote the conservation of the 
western yellow-billed cuckoo and its habitat; and (3) the maintenance 
of effective partnerships with the Pueblo and working in collaboration 
and cooperation to promote additional conservation of the western 
yellow-billed cuckoo and their habitat.
    Educational benefits will be provided to the Pueblo lands if they 
are excluded from the designation, because their past and ongoing 
restoration projects, with management goals, provide for conservation 
benefits above any that would be provided by designating critical 
habitat. For example, the educational aspects are similar for this area 
if they are not included in the designation because the Pueblo will 
continue to work cooperatively toward the conservation of the riparian 
ecosystem, and we have determined that based on their history of 
conservation, that this will also benefit the western yellow-billed 
cuckoo.
    The exclusion from critical habitat will further support and 
maintain our cooperative working relationship with the Pueblo, and 
provide conservation benefits, including implementing habitat 
restoration and enhancements above those which have already been 
implemented. During past discussions with the Pueblo, we were informed 
that critical habitat would be viewed as an intrusion on their 
sovereign abilities to manage natural resources in accordance with 
their own policies, customs, and laws. For these reasons, we have 
determined that our working relationship with the Pueblo would be 
maintained if they are excluded from the designation of critical 
habitat for the western yellow-billed cuckoo. We view this as a 
substantial benefit.
    Protection of river and riparian habitat resources remains an 
important component of the Pueblo's culture and traditions. The Pueblo 
will continue to protect riparian habitat on tribal land through its 
existing programs and agreements.
    The long-term goal of riparian management on San Ildefonso Pueblo 
is to make significant additions of wetland areas for breeding 
southwestern willow flycatchers, as well as implement innovative 
restoration techniques, decrease fire hazards by restoring native 
vegetation, share information with other restoration practitioners, use 
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. These efforts will also provide benefit 
to the western yellow-billed cuckoo.
    Based on their traditional beliefs and ties to the bosque area, the 
Pueblo continues to protect, conserve, and restore the riparian species 
and their habitat. The Pueblo has invested ongoing time and effort to 
address the needs and recovery of the southwestern willow flycatcher 
and we have determined that, based on this history, that the Pueblo 
will also invest time and effort in conservation for the western

[[Page 20923]]

yellow-billed cuckoo. In addition, based on the long term goals of 
restoring additional wetland and native habitat, the Pueblo has shown 
that it is managing its resources to meet its traditional and cultural 
needs, while addressing the needs of federally listed species.
    Proactive voluntary conservation efforts have and will continue to 
promote the recovery of the western yellow-billed cuckoo. As mentioned 
above, the Pueblo is an important land manager in the Upper Rio Grande 
Unit. The commitments in the IRMP demonstrate the willingness of the 
Pueblo to work cooperatively with us toward conservation efforts that 
will benefit listed species. The Pueblo has committed to several 
ongoing or future management, restoration, enhancement, activities that 
may not occur with critical habitat designation. Therefore, we have 
determined that the results of these activities will promote long-term 
protection and conserve the western yellow-billed cuckoo and its 
habitat within the Pueblo lands. The benefits of excluding this area 
from critical habitat will encourage the continued cooperation and 
development of data-sharing and management plans.

Benefits of Exclusion Outweigh the Benefits of Inclusion--San Ildefonso 
Pueblo

    The benefits of including the Pueblo in the critical habitat 
designation are limited to the incremental benefits gained through the 
regulatory requirement to consult under section 7 and consideration of 
the need to avoid adverse modification of critical habitat, agency and 
educational awareness, potential additional grant funding, and the 
implementation of other law and regulations. The benefits of including 
the Pueblo in critical habitat are low, and are limited to minor 
educational benefits. However, due to the rarity of Federal actions 
resulting in formal section 7 consultations, the benefits of a critical 
habitat designation are minimized. The benefits of consultation are 
further minimized because any conservation measures which may have 
resulted from consultation are already provided through other 
mechanisms, such as (1) the conservation benefits to the western 
yellow-billed cuckoo and their habitat from implementation of the 
Pueblo's management plans; and (2) the maintenance of effective 
collaboration and cooperation to promote the conservation of the 
southwestern willow flycatcher and western yellow-billed cuckoo and 
their habitat. Because the Pueblo has developed a specific management 
plan, has been involved with the critical habitat designation process, 
and is aware of the value of their lands for western yellow-billed 
cuckoo conservation, the educational benefits of a western yellow-
billed cuckoo critical habitat designation are also minimized.
    The benefits of excluding these areas from designation as critical 
habitat for the western yellow-billed cuckoo are significant, and 
include encouraging the continued development and implementation of 
special management measures such as enhancement, and restoration 
activities that the Pueblo plans for the future or is currently 
implementing. These activities and projects will allow the Pueblo to 
manage their natural resources to benefit the Upper Rio Grande Unit and 
the western yellow-billed cuckoo, without the perception of Federal 
Government intrusion. This philosophy is also consistent with our 
published policies on Native American natural resource management. The 
exclusion of this area will likely also provide additional benefits to 
the species that would not otherwise be available to encourage and 
maintain cooperative working relationships. We find that the benefits 
of excluding this area from critical habitat designation outweigh the 
benefits of including this area.

Exclusion Will Not Result in Extinction of the Species--San Ildefonso 
Pueblo

    We have determined that exclusion of the Pueblo land from the 
designation of critical habitat will not result in extinction of the 
western yellow-billed cuckoo. We base this determination on several 
points. Firstly, as discussed above under Effects of Critical Habitat 
Designation Section 7 Consultation, if a Federal action or permitting 
occurs, the known presence of western yellow-billed cuckoos or their 
habitat would require evaluation under the jeopardy standard of section 
7 of the Act, even absent the designation of critical habitat, and thus 
will protect the species against extinction. Secondly, the Pueblo is 
committed to protecting and managing Pueblo lands and species found on 
those lands according to their tribal and cultural management plans and 
natural resource management objectives, which provide conservation 
benefits for the species and its habitat. In short, the Pueblo is 
committed to greater conservation measures on their land than would be 
available through the designation of critical habitat. Accordingly, we 
have determined that the 1,032 ac (418 ha) of San Ildefonso lands be 
excluded under subsection 4(b)(2) of the Act because the benefits of 
exclusion outweigh the benefits of inclusion and will not cause the 
extinction of the species.
Unit 37: NM-6A) Middle Rio Grande--Santa Ana Pueblo, NM
    On Santa Ana Pueblo, we proposed 862 ac (349 ha) of critical 
habitat within Sandoval County, New Mexico. The entire area is excluded 
from the final designation.
    The Pueblo is an important land manager in the Middle Rio Grande. 
The Pueblo of Santa Ana has developed and maintained a long standing 
history of habitat projects and conservation that includes the 
southwestern willow flycatcher, Rio Grande silvery minnow, and the 
western yellow-billed cuckoo. The objective of their management program 
is to protect, conserve, and promote the resources associated with the 
southwestern willow flycatcher, silvery minnow, and western yellow-
billed cuckoo within the Pueblo's boundaries. Over the last 26 years, 
an estimated 3 formal consultations have occurred and all have been 
associated with either the Rio Grande silvery minnow or southwestern 
willow flycatcher. No consultations for western yellow-billed cuckoo 
have occurred for actions on Santa Ana Pueblo lands. The consultation 
history, surveys, and conservation, restoration and management 
information historically submitted by the Pueblo documents that 
meaningful collaborative and cooperative work for listed species and 
their habitat that have occurred within their lands. These commitments 
demonstrate the willingness of the Pueblo to work cooperatively with us 
toward conservation efforts that will benefit the western yellow-billed 
cuckoo. The Pueblo has committed to several ongoing or future 
management, restoration, enhancement, and survey activities that may 
not occur with critical habitat designation. The Santa Ana Pueblo has 
completed restoration and conservation efforts, including a Safe Harbor 
Agreement, for the efforts associated with the southwestern willow 
flycatcher, and our ongoing conservation partnership. We have 
determined that the management practices of Santa Ana Pueblo fulfills 
our criteria for exclusion.

Benefits of Inclusion--Santa Ana Pueblo

    As discussed above under Effects of Critical Habitat Designation 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of

[[Page 20924]]

any designated critical habitat of such species. The difference in the 
outcomes of the jeopardy analysis and the adverse modification analysis 
represents the regulatory benefit and costs of critical habitat. A 
critical habitat designation requires Federal agencies to consult on 
whether their activity would destroy or adversely modify critical 
habitat to the point where recovery could not be achieved.
    Another possible benefit is that the designation of critical 
habitat can serve to educate the public regarding the potential 
conservation value of an area, and this may focus and contribute to 
conservation efforts by other parties by clearly delineating areas of 
high conservation value for certain species. Any information about the 
western yellow-billed cuckoo and its habitat that reaches a wide 
audience, including other parties engaged in conservation activities, 
would be considered valuable. However, the Pueblo is already working 
with the Service to address the habitat needs of the species. For these 
reasons, then, we have determined that designation of critical habitat 
would have few, if any, additional benefits beyond those that will 
result from continued consultation for the presence of the species.
    Another possible benefit of the designation of critical habitat is 
that it may also affect the implementation of Federal laws, such as the 
Clean Water Act. These laws require analysis of the potential for 
proposed projects to significantly affect the environment. Critical 
habitat may signal the presence of sensitive habitat that could 
otherwise be missed in the review process for these other environmental 
laws.
    Finally, there is the possible benefit that additional funding 
could be generated for habitat improvement by an area being designated 
as critical habitat. Some funding sources may rank a project higher if 
the area is designated as critical habitat. Tribes or pueblos often 
seek additional sources of funding in order to conduct wildlife-related 
conservation activities. Therefore, having an area designated as 
critical habitat could improve the chances of receiving funding for 
western yellow-billed cuckoo habitat-related projects.

Benefits of Exclusion--Santa Ana Pueblo

    The benefits of excluding the Pueblo from designated critical 
habitat are significant and include: (1) Our deference to the Pueblo to 
develop and implement conservation and natural resource management 
plans for their lands and resources, which includes benefits to the 
western yellow-billed cuckoo and its habitat that might not otherwise 
occur; (2) the continuance and strengthening of our effective working 
relationships with the Pueblo to promote the conservation of the 
western yellow-billed cuckoo and its habitat; and (3) the maintenance 
of effective partnerships with the Pueblo and working in collaboration 
and cooperation to promote additional conservation of the western 
yellow-billed cuckoo and their habitat.
    We have determined that Santa Ana Pueblo should be the governmental 
entity to manage and promote the conservation of the western yellow-
billed cuckoo on their land. In comments submitted on October 21, 2014, 
the Santa Ana Pueblo indicated that they would discourage designation 
of critical habitat on their lands. During our discussions with Santa 
Ana Pueblo in development of this final designation, it became clear to 
the Service that a critical habitat designation on Santa Ana land would 
be viewed as disrespectful and an intrusion on their sovereign 
abilities to manage natural resources in accordance with their own 
policies, customs, and laws. The perceived restrictions of a critical 
habitat designation could have a more damaging effect to coordination 
efforts, possibly preventing actions that might maintain, improve, or 
restore habitat for the western yellow-billed cuckoo and other 
endangered or threatened species like the southwestern willow 
flycatcher and the Rio Grande silvery minnow.
    As part of our working relationship with the Pueblo, conservation 
benefits, including listed species' surveys, nest and/or habitat 
monitoring, and/or habitat restoration and enhancement have been 
possible. By excluding critical habitat from the Santa Ana Pueblo, we 
have determined that our working relationship with the Pueblo would be 
maintained. We view this as a substantial benefit.
    Therefore, we have determined that the results of these activities 
will promote long-term protection and conserve the western yellow-
billed cuckoo and its habitat within the Pueblo lands. The benefits of 
excluding this area from critical habitat will encourage the continued 
cooperation and development of data-sharing and management plans.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Santa Ana 
Pueblo

    The benefits of including the Pueblo in the critical habitat 
designation are limited to the incremental benefits gained through the 
regulatory requirement to consult under section 7 and consideration of 
the need to avoid adverse modification of critical habitat, agency and 
educational awareness, potential additional grant funding, and the 
implementation of other law and regulations. However, due to the rarity 
of Federal actions resulting in formal section 7 consultations (an 
estimated 3 formal consultations over the last 26 years and all 
associated with either Rio Grande silvery minnow or southwestern willow 
flycatcher), the benefits of a critical habitat designation are 
minimized. In addition, the benefits of consultation are further 
minimized because any conservation measures which may have resulted 
from consultation are already provided through other mechanisms, such 
as (1) the conservation benefits to the western yellow-billed cuckoo 
and their habitat from implementation of the Pueblo's management plans; 
and (2) the maintenance of effective collaboration and cooperation to 
promote the conservation of the southwestern willow flycatcher and 
western yellow-billed cuckoo and their habitat.
    The Pueblo will continue to protect its bosque habitat and does not 
intend to develop the areas we proposed as western yellow-billed cuckoo 
critical habitat. Moreover, under the historical and present management 
program, the Pueblo has conducted a variety of voluntary measures, 
restoration projects, monitoring programs and management actions to 
conserve riparian vegetation, including protecting riparian habitat 
from fire, maintaining native vegetation, completing surveys, working 
with BIA, Reclamation, USFS, the State of New Mexico, and the Service 
to acquire funding for restoration projects, and preventing habitat 
fragmentation.
    For these reasons, we have determined that our working relationship 
will be better maintained if Santa Ana Pueblo was excluded from the 
designation of western yellow-billed cuckoo critical habitat. We view 
this as a substantial benefit since we have developed a cooperative 
working relationship for the mutual benefit of endangered and 
threatened species, including the western yellow-billed cuckoo.
    In summary, the benefits of including the Pueblo in critical 
habitat are low, and are limited to insignificant educational benefits. 
The benefits of excluding these areas from designation as critical 
habitat for the western yellow-billed cuckoo are significant, and 
include encouraging the continued development and implementation of 
special management measures such as monitoring, surveys, enhancement, 
and restoration activities that the Pueblo

[[Page 20925]]

plans for the future or is currently implementing. These activities and 
projects will allow the Pueblo to manage their natural resources to 
benefit the Middle Rio Grande Unit and the western yellow-billed 
cuckoo, without the perception of Federal Government intrusion. This 
philosophy is also consistent with our published policies on Native 
American natural resource management. The exclusion of this area will 
likely also provide additional benefits to the species that would not 
otherwise be available to encourage and maintain cooperative working 
relationships. We find that the benefits of excluding this area from 
critical habitat designation outweigh the benefits of including this 
area.

Exclusion Will Not Result in Extinction of the Species--Santa Ana 
Pueblo

    We have determined that exclusion of the Pueblo land will not 
result in extinction of the species. First, activities on this area 
that may affect the western yellow-billed cuckoo will require 
consultation under section 7 of the Act. Section 7(a)(2) of the Act 
requires Federal agencies to ensure that activities they authorize, 
fund, or carry out are not likely to jeopardize the continued existence 
of listed species. Therefore, even without critical habitat designation 
on this land, activities that occur on this land cannot jeopardize the 
continued existence of the western yellow-billed cuckoo. Second, the 
Pueblo is committed to protecting and managing Pueblo lands and species 
found on those lands according to their tribal and cultural management 
plans and natural resource management objectives, which provide 
conservation benefits for the species and its habitat. In short, the 
Pueblo is committed to greater conservation measures on their land than 
would be available through the designation of critical habitat. 
Accordingly, we have determined that the 862 ac (349 ha) of Pueblo 
lands of Santa Ana be excluded under subsection 4(b)(2) of the Act 
because the benefits of exclusion outweigh the benefits of inclusion 
and will not cause the extinction of the species.
Unit 37 (NM-6A) Middle Rio Grande--Santo Domingo Tribe, NM
    On Santo Domingo Tribal Lands, we proposed 1,872 ac (758 ha) of 
critical habitat within Sandoval County, New Mexico. We are excluding 
the Santo Domingo Tribe from this final designation. The Tribe is an 
important land manager in the Middle Rio Grande. Their history of 
conservation includes completing surveys, providing for conservation, 
management, and restoration of habitat, and working in a meaningful, 
collaborative, and cooperative approach toward listed species 
conservation. To document this the Santo Domingo Tribe has developed a 
Western Yellow-billed Cuckoo Management Plan. We have determined that 
the plan fulfills our criteria for exclusion. Under the comprehensive 
Western Yellow-billed Cuckoo Management Plan, the Santo Domingo Tribe 
has conducted a variety of voluntary measures, restoration projects, 
and management actions to conserve riparian vegetation, including 
native vegetation enhancement, promotion of overbank flooding, 
pollution monitoring, species surveys and creating side channels, 
oxbows and wetlands. Despite conducting these activities, the 
consultation history with the Service has been minimal (1 formal 
consultation involving the Rio Grande silvery minnow dating back to 
1995).

Benefits of Inclusion--Santo Domingo Tribe

    As discussed above under Effects of Critical Habitat Designation 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat. A critical habitat 
designation requires Federal agencies to consult on whether their 
activity would destroy or adversely modify critical habitat to the 
point where recovery could not be achieved.
    Another possible benefit is that the designation of critical 
habitat can serve to educate the public regarding the potential 
conservation value of an area, and this may focus and contribute to 
conservation efforts by other parties by clearly delineating areas of 
high conservation value for certain species. Any information about the 
western yellow-billed cuckoo and its habitat that reaches a wide 
audience, including other parties engaged in conservation activities, 
would be considered valuable.
    Another possible benefit of the designation of critical habitat is 
that it may also affect the implementation of Federal laws, such as the 
Clean Water Act. These laws require analysis of the potential for 
proposed projects to significantly affect the environment. Critical 
habitat may signal the presence of sensitive habitat that could 
otherwise be missed in the review process for these other environmental 
laws.
    Finally, there is the possible benefit that additional funding 
could be generated for habitat improvement by an area being designated 
as critical habitat. Some funding sources may rank a project higher if 
the area is designated as critical habitat. Tribes or pueblos often 
seek additional sources of funding in order to conduct wildlife-related 
conservation activities. Therefore, having an area designated as 
critical habitat could improve the chances of receiving funding for 
western yellow-billed cuckoo habitat-related projects.

Benefits of Exclusion--Santo Domingo Tribe

    The benefits of excluding the Tribe from designated critical 
habitat include: (1) Our deference to the Pueblo to develop and 
implement conservation and natural resource management plans for their 
lands and resources, which includes benefits to the western yellow-
billed cuckoo and its habitat that might not otherwise occur; (2) the 
continuance and strengthening of our effective working relationships 
with the Pueblo to promote the conservation of the western yellow-
billed cuckoo and its habitat; and (3) the maintenance of effective 
partnerships with the Pueblo and working in collaboration and 
cooperation to promote additional conservation of the western yellow-
billed cuckoo and their habitat.
    We have determined that Santo Domingo Tribe should be the 
governmental entity to manage and promote the conservation of the 
western yellow-billed cuckoo on their land. The designation of critical 
habitat on Santo Domingo would be expected to have an adverse impact on 
our working relationship. From comments we received from Santo Domingo 
Pueblo on September 16, 2019, on the proposed designation of critical 
habitat for the western yellow-billed cuckoo, it became clear to the 
Service that critical habitat would be viewed as an intrusion on their 
sovereign abilities to manage natural resources in accordance with 
their own policies, customs, and laws. The perceived restrictions of a 
critical habitat designation could have a more damaging effect to 
coordination efforts, possibly preventing actions that might maintain, 
improve, or restore habitat for the western yellow-billed.
    We find that other conservation benefits are provided to the Middle 
Rio Grande Unit and the western yellow-billed cuckoo and its habitat by 
excluding the Tribe from the designation. For example, as part of 
maintaining a cooperative working

[[Page 20926]]

relationship with the Tribe, conservation benefits, including listed 
species' surveys, nest and/or habitat monitoring, and/or habitat 
restoration and enhancement have been possible as evidenced by the 
development of the Western Yellow-billed Cuckoo Management Plan and 
their history of completing bird surveys on their tribal lands for more 
than ten years. The objective of their Management Plan is to protect 
and improve habitat for all avian species and wildlife on their tribal 
lands. IN comments submitted on September 16, 2019, the Santo Domingo 
Tribe indicated that it opposes the designation of critical habitat. 
The Santo Domingo Tribe would like to manage natural resources in 
accordance with their own policies, customs, and laws. For these 
reasons, we have determined that our working relationship with the 
Tribe would be maintained if they are excluded from the designation of 
critical habitat for the western yellow-billed cuckoo. We view this as 
a substantial benefit.
    Proactive voluntary conservation efforts have and will continue to 
promote the recovery of the western yellow-billed cuckoo. As mentioned 
above, the Tribe is an important land manager in the Middle Rio Grande 
Unit. The history in completing surveys, conservation, restoration and 
management documents that meaningful collaborative and cooperative work 
for listed species and their habitat will continue within their lands. 
These commitments demonstrate the willingness of the Tribe to work 
cooperatively with us toward conservation efforts that will benefit the 
western yellow-billed cuckoo. The Tribe has committed to several 
ongoing or future management, restoration, enhancement, and survey 
activities that may not occur with critical habitat designation. 
Therefore, we have determined that the results of these activities will 
promote long-term protection and conserve the western yellow-billed 
cuckoo and its habitat within the Tribal lands. The benefits of 
excluding this area from critical habitat will encourage the continued 
cooperation and development of data-sharing and management plans.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Santo Domingo 
Tribe

    The benefits of including the Tribe in the critical habitat 
designation are limited to the incremental benefits gained through the 
regulatory requirement to consult under section 7 and consideration of 
the need to avoid adverse modification of critical habitat, agency and 
educational awareness, potential additional grant funding, and the 
implementation of other law and regulations. However, due to the rarity 
of Federal actions resulting in formal section 7 consultations (one 
formal consultation since 1995), the benefits of a critical habitat 
designation are minimized. In addition, the benefits of consultation 
are further minimized because any conservation measures which may have 
resulted from consultation are already provided through other 
mechanisms, such as (1) the conservation benefits to the western 
yellow-billed cuckoo and their habitat from implementation of the 
Tribe's Western Yellow-billed Cuckoo Management Plan; and (2) the 
maintenance of effective collaboration and cooperation to promote the 
conservation of the western yellow-billed cuckoo and its habitat. We 
view these as substantial benefits since we have developed a 
cooperative working relationship with the Tribe for the mutual benefit 
of endangered and threatened species, including the western yellow-
billed cuckoo. We find that the benefits of excluding this area from 
critical habitat designation outweigh the benefits of including this 
area.

Exclusion Will Not Result in Extinction of the Species--Santo Domingo 
Tribe

    We have determined that exclusion of the Tribal land will not 
result in extinction of the species. Firstly, as discussed above under 
Effects of Critical Habitat Designation Section 7 Consultation, if a 
Federal action or permitting occurs, the known presence of western 
yellow-billed cuckoos or their habitat would require evaluation under 
the jeopardy standard of section 7 of the Act, even absent the 
designation of critical habitat, and thus will protect the species 
against extinction. Secondly, the Tribe is committed to protecting and 
managing Tribal lands and species found on those lands according to 
their tribal and cultural management plans and natural resource 
management objectives, which provide conservation benefits for the 
species and its habitat. In short, the Tribe is committed to greater 
conservation measures on their land than would be available through the 
designation of critical habitat. Accordingly, we have determined that 
the 1,872 ac (758 ha) of Tribal lands of Santo Domingo are excluded 
under subsection 4(b)(2) of the Act because the benefits of exclusion 
outweigh the benefits of inclusion and will not cause the extinction of 
the species.
Unit 37 (NM-6A) Middle Rio Grande--Cochiti Pueblo, NM
    We proposed 1,458 ac (590 ha) of Cochiti Pueblo as critical habitat 
along the Rio Grande. We excluding all of Cochiti Pueblo lands from the 
final designation.
    The Cochiti Pueblo has a demonstrated productive working 
relationship with the Service in conservation of listed species and we 
are aware of Cochiti Pueblo's history of conducting a variety of 
voluntary measures, restoration projects, and management actions to 
conserve riparian vegetation, including the prevention of riparian 
habitat from fire, maintaining native vegetation, and preventing 
habitat fragmentation. These measures shows the commitment and history 
of activities being implemented by the Pueblo for meaningful, 
collaborative, and cooperative work for conservation of listed species. 
This history demonstrates the willingness of the Pueblo to work 
cooperatively with us toward conservation efforts that will benefit the 
western yellow-billed cuckoo. The Pueblo has committed to several 
ongoing or future management, restoration, enhancement, and survey 
activities on their lands. However, dating back to 1989, there have 
been just two formal consultations and they were associated with the 
Rio Grande silvery minnow and Bald eagle (Haliaeetus leucocephalus).

Benefits of Inclusion--Cochiti Pueblo

    As discussed above under Effects of Critical Habitat Designation 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat. A critical habitat 
designation requires Federal agencies to consult on whether their 
activity would destroy or adversely modify critical habitat to the 
point where recovery could not be achieved.
    Another possible benefit is that the designation of critical 
habitat can serve to educate the public regarding the potential 
conservation value of an area, and this may focus and contribute to 
conservation efforts by other parties by clearly delineating areas of 
high conservation value for certain species. Any information about the 
western yellow-billed cuckoo and its habitat that

[[Page 20927]]

reaches a wide audience, including other parties engaged in 
conservation activities, would be considered valuable. However, Cochiti 
Pueblo is already working with the Service to address the habitat needs 
of the species. For these reasons, then, we have determined that 
designation of critical habitat would have few, if any, additional 
benefits beyond those that will result from continued consultation for 
the presence of the species due to the implementation of the Pueblo's 
voluntary conservation measures, restoration projects, and management.
    Another possible benefit of the designation of critical habitat is 
that it may also affect the implementation of Federal laws, such as the 
Clean Water Act. These laws require analysis of the potential for 
proposed projects to significantly affect the environment. Critical 
habitat may signal the presence of sensitive habitat that could 
otherwise be missed in the review process for these other environmental 
laws.
    Finally, there is the possible benefit that additional funding 
could be generated for habitat improvement by an area being designated 
as critical habitat. Some funding sources may rank a project higher if 
the area is designated as critical habitat. Tribes or pueblos often 
seek additional sources of funding in order to conduct wildlife-related 
conservation activities. Therefore, having an area designated as 
critical habitat could improve the chances of receiving funding for 
western yellow-billed cuckoo habitat-related projects.

Benefits of Exclusion--Cochiti Pueblo

    The benefits of excluding Cochiti Pueblo from designated critical 
habitat include: (1) Our deference to the Pueblo to develop and 
implement conservation and natural resource management plans for their 
lands and resources, which includes benefits to the western yellow-
billed cuckoo and its habitat that might not otherwise occur; (2) the 
continuance and strengthening of our effective working relationships 
with the Pueblo to promote the conservation of the western yellow-
billed cuckoo and its habitat; and (3) the maintenance of effective 
partnerships with the Pueblo and working in collaboration and 
cooperation to promote additional conservation of the western yellow-
billed cuckoo and their habitat.
    We have determined that Cochiti Pueblo should be the governmental 
entity to manage and promote the conservation of the western yellow-
billed cuckoo on their land. During our coordination with Cochiti 
Pueblo on February 25, 2020, during the development of this final 
designation, we were informed that the Pueblo prefers exclusion of its 
lands from critical habitat and the ability to manage their lands as 
appropriate for their cultural needs and traditional values. Proactive 
voluntary conservation efforts have and will continue to promote the 
recovery of the western yellow-billed cuckoo. As mentioned above, the 
Pueblo is an important land manager in the Middle Rio Grande Unit and 
historically has provided for conservation of listed species including 
the western yellow-billed cuckoo. The Pueblo has committed to several 
ongoing or future management, restoration, enhancement, and survey 
activities that may not occur with critical habitat designation. 
Therefore, we have determined that the results of these activities will 
promote long-term protection and conserve the western yellow-billed 
cuckoo and its habitat within the Pueblo lands. The benefits of 
excluding this area from critical habitat will encourage the continued 
cooperation and development of data-sharing and management plans. We 
view this as a substantial benefit.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Cochiti 
Pueblo

    The benefits of including the Pueblo in the critical habitat 
designation are limited to the incremental benefits gained through the 
regulatory requirement to consult under section 7 and consideration of 
the need to avoid adverse modification of critical habitat, agency and 
educational awareness, potential additional grant funding, and the 
implementation of other law and regulations. However, due to the rarity 
of Federal actions resulting in formal section 7 consultations (two 
formal consultations since 1989), the benefits of a critical habitat 
designation are minimized. In addition, the benefits of consultation 
are further minimized because any conservation measures which may have 
resulted from consultation are already provided through other 
mechanisms, such as (1) the conservation benefits to the western 
yellow-billed cuckoo and their habitat from actions being implemented 
by the Pueblo; and (2) the maintenance of effective collaboration and 
cooperation to promote the conservation of the western yellow-billed 
cuckoo and its habitat. We view these as substantial benefits since we 
have developed a cooperative working relationship with the Pueblo for 
the mutual benefit of endangered and threatened species, including the 
western yellow-billed cuckoo.
    Because the Pueblo has developed a history of conservation 
activities for the western yellow-billed cuckoo, has been involved with 
the critical habitat designation process, and is aware of the value of 
their lands for western yellow-billed cuckoo conservation, the 
educational benefits of a western yellow-billed cuckoo critical habitat 
designation are also minimized.
    By allowing the Pueblo to implement its own resource conservation 
programs, it gives the Pueblo the opportunity to manage their natural 
resources to benefit riparian habitat for the western yellow-billed 
cuckoo, without the perception of Federal Government intrusion. The 
exclusion of these areas will likely also provide additional benefits 
to the western yellow-billed cuckoo and other listed species that would 
not otherwise be available without the Service's maintaining a 
cooperative working relationships with the Pueblo. The actions taken by 
the Pueblo to manage and protect habitat needed for western yellow-
billed cuckoo are above those conservation measures which may be 
required if the area was designated as critical habitat. As a result, 
we have determined that the benefits of excluding these tribal lands 
from critical habitat designation outweigh the benefits of including 
these areas. We find that the benefits of excluding this area from 
critical habitat designation outweigh the benefits of including this 
area.

Exclusion Will Not Result in Extinction of the Species--Cochiti Pueblo

    We have determined that exclusion of the Pueblo land will not 
result in extinction of the species. We base this determination on 
several points. Firstly, as discussed above under Effects of Critical 
Habitat Designation Section 7 Consultation, if a Federal action or 
permitting occurs, the known presence of western yellow-billed cuckoos 
or their habitat would require evaluation under the jeopardy standard 
of section 7 of the Act, even absent the designation of critical 
habitat, and thus will protect the species against extinction. Second, 
the Pueblo is committed to protecting and managing Pueblo lands and the 
species found on those lands according to their tribal, cultural, and 
natural resource management history, which provide conservation 
benefits for the species and its habitat.
    In short, Cochiti Pueblo is committed to greater conservation 
measures on their land than would be available through the designation 
of critical habitat. We have determined that this commitment 
accomplishes greater conservation than would be available through the 
implementation of a designation of critical habitat on a project-by-
project basis. Accordingly,

[[Page 20928]]

we have determined that 1,458 ac (590 ha) of the Cochiti Pueblo lands 
be excluded from the final designation under subsection 4(b)(2) of the 
Act because the benefits of exclusion outweigh the benefits of 
inclusion and will not cause the extinction of the species.
Unit 37 (NM-6A) Middle Rio Grande--San Felipe Pueblo, NM
    On San Felipe Pueblo, we proposed 2,368 ac (958 ha) of critical 
habitat within Sandoval County, New Mexico. We are excluding the entire 
area from the final designation of critical habitat.
    The San Felipe Pueblo has a demonstrated productive working 
relationship with the Service in conservation of listed species and we 
are aware of San Felipe Pueblo's history of conducting a variety of 
voluntary measures, restoration projects, and management actions to 
conserve riparian vegetation, including conducting listed species' 
surveys, nest and habitat monitoring, and habitat restoration and 
enhancement through the Pueblo's development and implementation of 
their Wildlife Management Plan specific to the western yellow-billed 
cuckoo. The objective of this plan is to protect, conserve, and promote 
the management of the western yellow-billed cuckoo and their associated 
habitats within the Pueblo's boundaries. The development and 
implementation of the plan demonstrates the Pueblo's willingness to 
work cooperatively with the Service and other partners on conservation 
efforts that will benefit the western yellow-billed cuckoo.

Benefits of Inclusion--San Felipe Pueblo

    As discussed above under Effects of Critical Habitat Designation 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat.
    Another possible benefit is that the designation of critical 
habitat can serve to educate the public regarding the potential 
conservation value of an area, and this may focus and contribute to 
conservation efforts by other parties by clearly delineating areas of 
high conservation value for certain species. Any information about the 
western yellow-billed cuckoo and its habitat that reaches a wide 
audience, including other parties engaged in conservation activities, 
would be considered valuable. However, the Pueblo is already working 
with the Service to address the habitat needs of the species. For these 
reasons, then, we have determined that designation of critical habitat 
would have few, if any, additional benefits beyond those that will 
result from continued consultation for the presence of the species.
    Another possible benefit of the designation of critical habitat is 
that it may also affect the implementation of Federal laws, such as the 
Clean Water Act. These laws require analysis of the potential for 
proposed projects to significantly affect the environment. Critical 
habitat may signal the presence of sensitive habitat that could 
otherwise be missed in the review process for these other environmental 
laws.
    Finally, there is the possible benefit that additional funding 
could be generated for habitat improvement by an area being designated 
as critical habitat. Some funding sources may rank a project higher if 
the area is designated as critical habitat. Tribes or pueblos often 
seek additional sources of funding in order to conduct wildlife-related 
conservation activities. Therefore, having an area designated as 
critical habitat could improve the chances of receiving funding for 
western yellow-billed cuckoo habitat-related projects.

Benefits of Exclusion--San Felipe Pueblo

    We have determined that significant benefits would be realized by 
foregoing the designation of critical habitat. These benefits include: 
(1) Our deference to the Pueblo to develop and implement conservation 
and natural resource management plans for their lands and resources, 
which includes benefits to the western yellow-billed cuckoo and its 
habitat that might not otherwise occur; (2) the continuance and 
strengthening of our effective working relationships with the Pueblo to 
promote the conservation of the western yellow-billed cuckoo and its 
habitat; and (3) the maintenance of effective partnerships with the 
Pueblo and working in collaboration and cooperation to promote 
additional conservation of the western yellow-billed cuckoo and their 
habitat.
    We have determined that San Felipe Pueblo should be the 
governmental entity to manage and promote the conservation of the 
western yellow-billed cuckoo on their land due to the additional 
conservation benefits that would be provided for the western yellow-
billed cuckoo and its habitat by excluding the Pueblo from the 
designation. Comments submitted by San Felipe Pueblo on December 19, 
2014, informed us that a critical habitat designation would limit the 
ability of the Pueblo to manage their lands and restrict their cultural 
needs and traditional values, and recommended exclusion. For these 
reasons, we have determined that our working relationship with the 
Pueblo would be better maintained if they are excluded from the 
designation of critical habitat for the western yellow-billed cuckoo. 
We view this as a substantial benefit. The perceived restrictions of a 
critical habitat designation could have a more damaging effect to 
coordination efforts, possibly preventing actions that might maintain, 
improve, or restore habitat for the western yellow-billed cuckoo and 
other endangered or threatened species like the southwestern willow 
flycatcher.
    Proactive voluntary conservation efforts have and will continue to 
promote the recovery of the western yellow-billed cuckoo. As mentioned 
above, the Pueblo is an important land manager in the Middle Rio Grande 
Unit. The consultation history, surveys, and conservation, restoration 
and management information historically submitted by the Pueblo 
documents that meaningful collaborative and cooperative work for listed 
species and their habitat will continue within their lands. These 
commitments demonstrate the willingness of the Pueblo to work 
cooperatively with us toward conservation efforts that will benefit the 
western yellow-billed cuckoo. Overall, the commitments toward 
management of western yellow-billed cuckoo habitat by the Pueblo likely 
accomplish greater conservation than would be available through the 
implementation of a designation of critical habitat on a project-by-
project basis.
    The Pueblo has committed to several ongoing or future management, 
restoration, enhancement, and survey activities that may not occur with 
critical habitat designation. Therefore, we have determined that the 
results of these activities will promote long-term protection and 
conserve the western yellow-billed cuckoo and its habitat within the 
Pueblo lands. The benefits of excluding this area from critical habitat 
will encourage the continued cooperation and development of data-
sharing and management plans.

Benefits of Exclusion Outweigh the Benefits of Inclusion--San Felipe 
Pueblo

    The benefits of including the Pueblo in the critical habitat 
designation are limited to the incremental benefits

[[Page 20929]]

gained through the regulatory requirement to consult under section 7 
and consideration of the need to avoid adverse modification of critical 
habitat, agency and educational awareness, potential additional grant 
funding, and the implementation of other law and regulations. However, 
as discussed above, we have determined that these benefits are 
minimized because they are provided through other mechanisms, such as 
(1) the conservation benefits to the western yellow-billed cuckoo and 
their habitat from implementation the Pueblo's Wildlife Management 
Plan; and (2) the maintenance of effective collaboration and 
cooperation to promote the conservation of the western yellow-billed 
cuckoo and their habitat. The Pueblo will continue to protect its 
bosque habitat and does not intend to develop the areas we proposed as 
western yellow-billed cuckoo critical habitat. Moreover, under the 
comprehensive Wildlife Management Plan, San Felipe Pueblo has conducted 
a variety of voluntary measures, restoration projects, and management 
actions to conserve riparian vegetation, including the prevention of 
riparian habitat from fire, maintaining native vegetation, and 
preventing habitat fragmentation.
    We have determined that our working relationship will be better 
maintained if San Felipe Pueblo was excluded from the designation of 
western yellow-billed cuckoo critical habitat. We view this as a 
substantial benefit since we have developed a cooperative working 
relationship for the mutual benefit of endangered and threatened 
species, including the western yellow-billed cuckoo.
    In summary, the benefits of including the Pueblo in critical 
habitat are low, and are limited to insignificant educational benefits. 
The benefits of excluding these areas from designation as critical 
habitat for the western yellow-billed cuckoo are significant, and 
include encouraging the continued development and implementation of 
special management measures such as monitoring, surveys, enhancement, 
and restoration activities that the Pueblo plans for the future or is 
currently implementing. These activities and projects will allow the 
Pueblo to manage their natural resources to benefit the Middle Rio 
Grande Unit and the western yellow-billed cuckoo, without the 
perception of Federal Government intrusion. The exclusion of this area 
will likely also provide additional benefits to the species that would 
not otherwise be available to encourage and maintain cooperative 
working relationships. We find that the benefits of excluding this area 
from critical habitat designation outweigh the benefits of including 
this area.

Exclusion Will Not Result in Extinction of the Species--San Felipe 
Pueblo

    We have determined that exclusion of the Pueblo land will not 
result in extinction of the species. Firstly, as discussed above under 
Effects of Critical Habitat Designation Section 7 Consultation, if a 
Federal action or permitting occurs, the known presence of western 
yellow-billed cuckoos or their habitat would require evaluation under 
the jeopardy standard of section 7 of the Act, even absent the 
designation of critical habitat, and thus will protect the species 
against extinction. Secondly, the Pueblo is committed to protecting and 
managing Pueblo lands and species found on those lands according to 
their tribal and cultural management plans and natural resource 
management objectives, which provide conservation benefits for the 
species and its habitat. In short, the Pueblo is committed to greater 
conservation measures on their land than would be available through the 
designation of critical habitat. Accordingly, we have determined that 
the Pueblo lands of San Felipe should be excluded under subsection 
4(b)(2) of the Act because the benefits of exclusion outweigh the 
benefits of inclusion and will not cause the extinction of the species. 
Therefore, we are excluding the 2,368 ac (958 ha) of Pueblo lands of 
San Felipe of Unit 37 NM-6A from the final critical habitat 
designation.
Unit 37 (NM-6B) Middle Rio Grande--Isleta Pueblo, NM
    On Isleta Pueblo, approximately 2,165 ac (876 ha) of critical 
habitat was identified within Bernalillo County, New Mexico. We are 
excluding the entire area from critical habitat. The Isleta Pueblo have 
developed and implemented a Riverine Management Plan for conservation 
of riparian resources on their lands (Isleta Pueblo 2015, entire). We 
have determined that the Isleta Riverine Management Plan fulfills our 
criteria for exclusion and includes measures to maintain, improve, or 
restore habitat for the western yellow-billed cuckoo and other 
endangered or threatened species like the southwestern willow 
flycatcher, silvery minnow, and New Mexico meadow jumping mouse.

Benefits of Inclusion--Isleta Pueblo

    As discussed above under Effects of Critical Habitat Designation 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat. A critical habitat 
designation requires Federal agencies to consult on whether their 
activity would destroy or adversely modify critical habitat to the 
point where recovery could not be achieved. Another possible benefit is 
that the designation of critical habitat can serve to educate the 
public regarding the potential conservation value of an area, and this 
may focus and contribute to conservation efforts by other parties by 
clearly delineating areas of high conservation value for certain 
species. Any information about the western yellow-billed cuckoo and its 
habitat that reaches a wide audience, including other parties engaged 
in conservation activities, would be considered valuable. However, the 
Pueblo is already working with the Service to address the habitat needs 
of the species. For these reasons, then, we have determined that 
designation of critical habitat would have few, if any, additional 
benefits beyond those that will result from continued consultation for 
the presence of the species.
    Another possible benefit of the designation of critical habitat is 
that it may also affect the implementation of Federal laws, such as the 
Clean Water Act. These laws require analysis of the potential for 
proposed projects to significantly affect the environment. Critical 
habitat may signal the presence of sensitive habitat that could 
otherwise be missed in the review process for these other environmental 
laws.
    Finally, there is the possible benefit that additional funding 
could be generated for habitat improvement by an area being designated 
as critical habitat. Some funding sources may rank a project higher if 
the area is designated as critical habitat. Tribes or pueblos often 
seek additional sources of funding in order to conduct wildlife-related 
conservation activities. Therefore, having an area designated as 
critical habitat could improve the chances of receiving funding for 
western yellow-billed cuckoo habitat-related projects.

Benefits of Exclusion--Isleta Pueblo

    The benefits of excluding the Pueblo from designated critical 
habitat are significant and include: (1) Our deference to the Pueblo to 
develop and implement conservation and natural resource management 
plans for their

[[Page 20930]]

lands and resources, which includes benefits to the western yellow-
billed cuckoo and its habitat that might not otherwise occur; (2) the 
continuance and strengthening of our effective working relationships 
with the Pueblo to promote the conservation of the western yellow-
billed cuckoo and its habitat; and (3) the maintenance of effective 
partnerships with the Pueblo and working in collaboration and 
cooperation to promote additional conservation of the western yellow-
billed cuckoo and their habitat.
    We have determined that Isleta Pueblo should be the governmental 
entity to manage and promote the conservation of the western yellow-
billed cuckoo on their land due to the additional conservation benefits 
that would be provided for the western yellow-billed cuckoo and its 
habitat by excluding the Pueblo from the designation. In comments 
received from the Isleta Pueblo on January 14, 2015, and July 17, 2020, 
we were informed that critical habitat would be viewed as an intrusion 
on their sovereign abilities to manage natural resources in accordance 
with their own policies, customs, and laws. During our discussions with 
Isleta Pueblo, they informed us that their perceived restrictions of a 
critical habitat designation could have a damaging effect to 
coordination efforts, possibly preventing actions that might maintain, 
improve, or restore habitat for the western yellow-billed cuckoo and 
other endangered or threatened species. For these reasons, we have 
determined that our working relationship with the Pueblo would be 
better maintained if they are excluded from the designation of critical 
habitat for the western yellow-billed cuckoo. For example, as part of 
maintaining a cooperative working relationship with the Pueblo, 
conservation benefits, including listed species' surveys, nest and/or 
habitat monitoring, and/or habitat restoration and enhancement have 
been possible. We view this as a substantial benefit.
    Proactive voluntary conservation efforts have and will continue to 
promote the recovery of the western yellow-billed cuckoo. The Pueblo of 
Isleta has developed and maintained a Riverine Management Plan that 
includes the southwestern willow flycatcher, Rio Grande silvery minnow, 
New Mexico meadow jumping mouse, and now contains an amendment to 
include the western yellow-billed cuckoo. The objective of this plan is 
to protect, conserve, and promote the management of the southwestern 
willow flycatcher, Rio Grande silvery minnow, and New Mexico meadow 
jumping mouse and their associated habitats within the Pueblo's 
boundaries. As mentioned above, the Pueblo is an important land manager 
in the Middle Rio Grande Unit. The consultation history, surveys, and 
conservation, restoration and management information historically 
submitted by the Pueblo documents that meaningful collaborative and 
cooperative work for listed species and their habitat will continue 
within their lands. These commitments demonstrate the willingness of 
the Pueblo to work cooperatively with us toward conservation efforts 
that will benefit the western yellow-billed cuckoo. The Pueblo has 
committed to several ongoing or future management, restoration, 
enhancement, and survey activities that may not occur with critical 
habitat designation. Therefore, we have determined that the results of 
these activities will promote long-term protection and conserve the 
western yellow-billed cuckoo and its habitat within the Pueblo lands. 
The benefits of excluding this area from critical habitat will 
encourage the continued cooperation and development of data-sharing and 
management plans.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Isleta Pueblo

    The benefits of including Pueblo lands in the critical habitat 
designation are limited to the incremental benefits gained through the 
regulatory requirement to consult under section 7 and consideration of 
the need to avoid adverse modification of critical habitat, agency and 
educational awareness, potential additional grant funding, and the 
implementation of other law and regulations. However, as discussed in 
detail above, we have determined that these benefits are minimized 
because they are provided through other mechanisms, such as (1) the 
conservation benefits to the western yellow-billed cuckoo and their 
habitat from implementation of the Pueblo's management plans; and (2) 
the maintenance of effective collaboration and cooperation to promote 
the conservation of the western yellow-billed cuckoo and their habitat.
    The Pueblo will continue to protect its bosque habitat and does not 
intend to develop the areas we proposed as western yellow-billed cuckoo 
critical habitat. Moreover, under the comprehensive Riverine Management 
Plan, the Isleta Pueblo has conducted a variety of voluntary measures, 
restoration projects, and management actions to conserve riparian 
vegetation, including not allowing cattle to graze within the bosque, 
protecting riparian habitat from fire, maintaining native vegetation, 
and preventing habitat fragmentation. For these reasons, we have 
determined that our working relationship will be better maintained if 
Isleta Pueblo was excluded from the designation of western yellow-
billed cuckoo critical habitat. We view this as a substantial benefit 
since we have developed a cooperative working relationship for the 
mutual benefit of endangered and threatened species, including the 
western yellow-billed cuckoo.
    In summary, the benefits of including the Pueblo in critical 
habitat are low, and are limited to insignificant educational benefits. 
The benefits of excluding these areas from designation as critical 
habitat for the western yellow-billed cuckoo are significant, and 
include encouraging the continued development and implementation of 
special management measures such as monitoring, surveys, enhancement, 
and restoration activities that the Pueblo plans for the future or is 
currently implementing. These activities and projects will allow the 
Pueblo to manage their natural resources to benefit the Middle Rio 
Grande Unit and the western yellow-billed cuckoo, without the 
perception of Federal Government intrusion. This philosophy is also 
consistent with our published policies on Native American natural 
resource management. The exclusion of this area will likely also 
provide additional benefits to the species that would not otherwise be 
available to encourage and maintain cooperative working relationships. 
We find that the benefits of excluding this area from critical habitat 
designation outweigh the benefits of including this area.

Exclusion Will Not Result in Extinction of the Species--Isleta Pueblo

    We have determined that exclusion of the Pueblo land will not 
result in extinction of the species. Firstly, as discussed above under 
Effects of Critical Habitat Designation Section 7 Consultation, if a 
Federal action or permitting occurs, the known presence of western 
yellow-billed cuckoos or their habitat would require evaluation under 
the jeopardy standard of section 7 of the Act, even absent the 
designation of critical habitat, and thus will protect the species 
against extinction. Secondly, the Pueblo is committed to protecting and 
managing Pueblo lands and species found on those lands according to 
their tribal and cultural management plans and natural resource 
management objectives, which provide conservation benefits for the 
species and its habitat. In short, the Pueblo is committed to greater 
conservation measures on their

[[Page 20931]]

land than would be available through the designation of critical 
habitat. Accordingly, we have determined that the 2,165 ac (876 ha) of 
Isleta Pueblo be excluded under subsection 4(b)(2) of the Act because 
the benefits of exclusion outweigh the benefits of inclusion and will 
not cause the extinction of the species.
Unit 70 (UT-1) Green River 1--Uintah and Ouray Indian Reservation Lands
    The Ute Tribe of the Uintah and Ouray Indian Reservation (Ute 
Tribe) owns and manages lands along the Green and Duchene Rivers in 
Uintah and Duchesne Counties, Utah within Unit 70 for the western 
yellow-billed cuckoo. Since at least 2016, the Ute Tribe has conducted 
conservation actions for the western yellow-billed cuckoo and its 
habitat on their lands and lands they manage, as described in the Ute 
Tribe's Conservation Strategy for the Western Yellow-billed Cuckoo on 
the Uintah and Ouray Indian Reservation ((Conservation Strategy) 
Sinclear and Simpson 2016, pp. i-20). The Conservation Strategy 
outlines conservation measures being implemented by the Ute Tribe 
including limiting development within 0.5 mi (0.8 ha) of western 
yellow-billed cuckoo habitat; ensuring that there is no net loss of 
riparian and wetland areas on Ute Tribal lands; supporting the 
restoration and enhancement of riparian and wetland areas; establishing 
a conservation mitigation fund; and designating western yellow-billed 
cuckoo refuge areas. We coordinated with and assisted the Ute Tribe in 
the development of the Conservation Strategy in 2016. Due to 
implementation of the Conservation Strategy, we identified 
approximately 14,611 ac (5,913 ha) of Ute Tribal lands for exclusion in 
the revised proposed rule. During the public comment period, we 
received additional land ownership information from Duchesne County 
regarding Tribal and other acquired land under tribal management. The 
acquired lands are lands purchased by the Utah Reclamation Mitigation 
and Conservation Commission (Mitigation Commission) for the Lower 
Duchesne Wetlands Mitigation Project, a project implemented due to 
impacts resulting from construction and operation of the Central Utah 
Project (Utah Reclamation Mitigation and Conservation Commission et al. 
2008, p. S-1). As a result, we adjusted the area we are excluding to 
approximately 15,017 ac (6,077 ha). A portion are owned by the Ute 
Tribe and a portion are federally acquired lands being managed by the 
Ute Tribe.

Benefits of Inclusion--Uintah and Ouray Indian Reservation Lands

    As discussed above under Effects of Critical Habitat Designation 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat. A critical habitat 
designation requires Federal agencies to consult on whether their 
activity would destroy or adversely modify critical habitat to the 
point where recovery could not be achieved. Designation of critical 
habitat on the Ute Tribal portion of Unit 70 could potentially benefit 
the western yellow-billed cuckoo because it provides habitat for the 
western yellow-billed cuckoo, is relatively undisturbed by human 
activity, encompasses features essential to conservation of the 
species, and is occupied by the species. The most likely Federal 
nexuses would be associated with Federal funding through the Bureau of 
Indian Affairs, permitting from the Corps if work involves activities 
in riparian or wetland areas, and Reclamation in their assistance to 
the Utah Reclamation Mitigation and Conservation Commission (Mitigation 
Commission) in acquiring lands for the Lower Duchesne Wetlands 
Mitigation Project. However, since the listing of the western yellow-
billed cuckoo in 2014, only one section 7 consultation involving the 
species has occurred on Ute Tribal lands, and we do not expect this 
trend to increase for future activities. As previously described, the 
Ute Tribe has implemented their Conservation Strategy for the species 
and its conservation actions will be coordinated with all future 
projects to minimize negative effects to the species. Therefore, we 
would not expect any additional conservation benefits through the 
section 7 process from the inclusion of Ute Tribal land in the final 
critical habitat designation.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners and 
the public regarding the potential conservation value of an area, and 
it may help focus management efforts on areas of high value for certain 
species.
    Another possible benefit of the designation of critical habitat is 
that it may also affect the implementation of Federal laws, such as the 
Clean Water Act. These laws require analysis of the potential for 
proposed projects to significantly affect the environment. Critical 
habitat may signal the presence of sensitive habitat that could 
otherwise be missed in the review process for these other environmental 
laws.
    Finally, there is the possible benefit that additional funding 
could be generated for habitat improvement by an area being designated 
as critical habitat. Some funding sources may rank a project higher if 
the area is designated as critical habitat. Tribes or pueblos often 
seek additional sources of funding in order to conduct wildlife-related 
conservation activities. Therefore, having an area designated as 
critical habitat could improve the chances of receiving funding for 
western yellow-billed cuckoo habitat-related projects.

Benefits of Exclusion--Uintah and Ouray Indian Reservation Lands

    The benefits of excluding the Uintah and Ouray Indian Reservation 
lands from designated critical habitat are significant and include: (1) 
Our deference to the Tribe to develop and implement conservation and 
natural resource management plans for their lands and resources, which 
includes benefits to the western yellow-billed cuckoo and its habitat 
that might not otherwise occur; (2) the continuance and strengthening 
of our effective working relationships with the Tribe to promote the 
conservation of the western yellow-billed cuckoo and its habitat; and 
(3) the maintenance of effective partnerships with the Tribe and 
working in collaboration and cooperation to promote additional 
conservation of the western yellow-billed cuckoo and their habitat.
    In working with the Ute Tribe, we have found that fish, wildlife, 
and other natural resources on tribal lands are better managed under 
tribal authorities, policies, and programs than through Federal 
regulation wherever possible and practicable. Additionally, critical 
habitat designations may be viewed by tribes as an unwanted intrusion 
into tribal self-governance, thus compromising our working relationship 
with the Tribe which is essential to achieving our mutual goals of 
managing for healthy ecosystems upon which the viability of threatened 
and endangered species populations depend.
    The Ute Tribe in coordination with the Service created the 
Conservation Strategy to addresses threats specific to the western 
yellow-billed cuckoo, and to provide protective management for the 
species on Ute Tribal lands. Within their strategy, the Ute Tribe 
developed

[[Page 20932]]

a set of conservation actions which benefit the western yellow-billed 
cuckoo. These actions include identification, protection, and retention 
of suitable habitat; management of livestock activities and invasive 
weeds; restriction of motorized vehicles; and avoiding development in 
western yellow-billed cuckoo occupied habitat areas. The Conservation 
Strategy provides recommended measures for best management practices to 
avoid and minimize impacts to the western yellow-billed cuckoo and 
surrounding habitat within a half mile (approximately 2,624 ft (800 m)) 
of suitable habitat. In addition, the Conservation Strategy identifies 
opportunities for and recommends participation in recovery efforts and 
research. The Ute Tribe's Conservation Strategy is consistent with 
their past record of conservation, restoration, and management actions 
for listed species and their habitat, and provides their commitment to 
continue implementing important conservation actions on their lands in 
the future.

Benefits of Exclusion Outweigh Benefits of Inclusion--Uintah and Ouray 
Indian Reservation Lands

    The benefits of including Ute Tribe's lands in the critical habitat 
designation are limited to the incremental benefits gained through the 
regulatory requirement to consult under section 7 and consideration of 
the need to avoid adverse modification of critical habitat, agency and 
educational awareness, potential additional grant funding, and the 
implementation of other law and regulations. However, as discussed in 
detail above, we have determined that these benefits are minimized 
because they are provided through other mechanisms, such as (1) the 
conservation benefits to the western yellow-billed cuckoo and their 
habitat from implementation of the Ute Tribe's management plans; and 
(2) the maintenance of effective collaboration and cooperation to 
promote the conservation of the western yellow-billed cuckoo and their 
habitat.
    The Ute Tribe's Conservation Strategy is expected to provide 
conservation and long-term management for the western yellow-billed 
cuckoo outside of the section 7 consultation process and through 
covering a broader area for the species. We have found that there would 
be little additional educational benefit gained from designating these 
Ute Tribal lands as critical habitat because the Ute Tribe is well 
aware of the species' presence, has developed conservation measures and 
mitigation methods to minimize development close to western yellow-
billed cuckoo habitat, and has provided protection through commitments 
to restore and enhance riparian areas on Ute Tribal lands.
    We have found that the Ute Tribe's Conservation Strategy provides 
greater protection than critical habitat designation would provide 
because it is a comprehensive conservation plan that is specific to 
western yellow-billed cuckoo conservation needs on Ute Tribal lands. 
The Ute Tribe developed the Conservation Strategy partially in response 
to the initial proposed designation of critical habitat for the western 
yellow-billed cuckoo for the purpose of maintaining management and 
conservation authority, and thus having a final critical habitat 
designation removed. Therefore, it is likely that the exclusion of Ute 
Tribal land as designated critical habitat will foster a better 
partnership and working relationship with the Tribe and implement 
coordinated efforts to continue conservation of western yellow-billed 
cuckoo and its habitat.
    Because the Ute Tribe has conserved western yellow-billed cuckoos 
on their lands with implementation of the Conservation Strategy, and 
will continue to do so, we see no additional benefits to the inclusion 
of Ute Tribal land in a final critical habitat rule. We have determined 
that conservation of the western yellow-billed cuckoo will continue to 
be achieved by the Ute Tribe as has been demonstrated by the proactive 
conservation from their Conservation Strategy. Given the importance of 
the Ute Tribe's Conservation Strategy to the current and future 
conservation of the western yellow-billed cuckoo and our working 
relationship with the Ute Tribe, the benefit of excluding Ute Tribal 
lands outweighs the benefit of including them in proposed designated 
critical habitat. Therefore, we would not expect any additional 
conservation benefits from the inclusion of Ute Tribal land in a final 
critical habitat designation, and Ute Tribal lands have been excluded 
from designation as final critical habitat under section 4(b)(2) of the 
Act for the western yellow-billed cuckoo.

Exclusion Will Not Result in Extinction of the Species--Uintah and 
Ouray Indian Reservation Lands

    We have determined that exclusion of the Ute Tribal lands from the 
critical habitat designation will not result in the extinction of the 
western yellow-billed cuckoo. We base this determination on several 
points. Firstly, as discussed above under Effects of Critical Habitat 
Designation Section 7 Consultation, if a Federal action or permitting 
occurs, the known presence of western yellow-billed cuckoos or their 
habitat would require evaluation under the jeopardy standard of section 
7 of the Act, even absent the designation of critical habitat, and thus 
will protect the species against extinction. Secondly, the Ute Tribes 
have a long term record of conserving species and habitat and is 
committed to protecting and managing western yellow-billed cuckoo 
habitat according to their cultural history, management plans, and 
natural resource management objectives. We have determined that this 
commitment accomplishes greater conservation than would be available 
through the implementation of a designation of critical habitat on a 
project-by-project basis. With the implementation of these conservation 
measures, based upon strategies developed in the management plan, we 
have concluded that this exclusion from critical habitat will not 
result in the extinction of the western yellow-billed cuckoo. Although 
the exclusion of approximately 15,017 ac (6,077 ha) of Ute Tribal lands 
equals approximately 50 percent of the area of proposed as critical 
habitat for western yellow-billed cuckoo in Utah, the exclusion totals 
just 5 percent of the total area identified in the proposed rule. 
Significant portions of land adjacent to the excluded areas are still 
within the final designation. In addition, management and conservation 
of habitat for the western yellow-billed cuckoo on these excluded lands 
will continue based on existing management of the area by the Ute Tribe 
and benefit of the species pursuant to the Ute Tribe's Conservation 
Strategy.
    As explained above, we find that including western yellow-billed 
cuckoo critical habitat on Ute Tribal land would result in minimal 
additional benefits to the species. We also find that the exclusion of 
these lands will not lead to the extinction of the western yellow-
billed cuckoo, nor hinder its recovery because of the Ute Tribe's 
emphasis to protect and enhance riparian habitat for the western 
yellow-billed cuckoo. This emphasis on conserving riparian habitat on 
Ute Tribal lands will ensure the long-term conservation of the western 
yellow-billed cuckoo and contribute to the species' recovery. 
Accordingly, we have determined that 15,017 ac (6,077 ha) of Uintah and 
Ouray Indian Reservation lands be excluded under subsection 4(b)(2) of 
the Act because the benefits of exclusion outweigh the benefits of 
inclusion and will not cause the extinction of the species.

[[Page 20933]]

Federal Lands

Unit 65 (ID-1) Snake River 1--American Falls Reservoir
    We have identified approximately 1,352 ac (547 ha) of federally 
owned, withdrawn, or easement lands associated with the full-pool 
elevation for the American Falls Reservoir for exclusion from the final 
critical habitat. The land is comprised of several large parcels of 
land which were either acquired by Reclamation under fee title, 
withdrawn from public domain for Reclamation purposes, or granted under 
prescriptive easement to Reclamation at the time of the construction of 
American Falls Dam and Reservoir. American Falls Dam and Reservoir 
comprise a multipurpose facility constructed for the Congressionally-
authorized purposes of irrigation and power generation and is part of 
the larger Minidoka Project. The land is located at the northeastern 
end of American Falls Reservoir where both the Snake River and McTucker 
Creek enter the reservoir in Bingham County, Idaho. The area is 
vegetated to varying degrees by a shifting mosaic of riparian 
communities, including suitable nesting habitat for the yellow-billed 
cuckoo. Reclamation has demonstrated a track record of maintaining 
these lands for natural resources through the implementation of their 
Ecologically Based System Management (EBSM) approach to the operation 
of the upstream Palisades Dam, conservation efforts to reduce impacts 
from livestock grazing, annual planting efforts, and annual noxious 
weed treatments. The EBSM was implemented in 2004, and mimics 
historical hydrographs to the greatest extent feasible. Significant 
changes in riparian cottonwood habitat conditions in the area adjacent 
to the full-pool have not occurred over the past decade and existing 
habitat conditions are not expected to change, expect for those 
positive projected habitat projects Reclamation are undertaking, in the 
near or long term.

Benefits of Inclusion--American Falls Reservoir

    As discussed above under Effects of Critical Habitat Designation 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat. A critical habitat 
designation requires Federal agencies to consult on whether their 
activity would destroy or adversely modify critical habitat to the 
point where recovery could not be achieved.
    Our section 7 consultation history within Reclamation lands being 
considered for exclusion, shows that since listing in 2014, no formal 
consultations have occurred for actions conducted on those lands. We 
have conducted an informal consultation for the operation and 
maintenance of Reclamation resources on the Snake River; however, 
overall, since listing in 2014, section 7 consultations have been rare 
on this area of Reclamation lands. Because of how Reclamation have 
chosen to manage and conserve their lands and the lack of past section 
7 consultation history, we do not anticipate that Reclamation actions 
would considerably change in the future, generating a noticeable 
increase in section 7 consultations or that consultation would cause 
significant changes to the current management of western yellow-billed 
cuckoo and its habitat.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners and 
the public regarding the potential conservation value of an area, and 
it may help focus management efforts on areas of high value for certain 
species. Any information about the western yellow-billed cuckoo that 
reaches a wide audience, including parties engaged in conservation 
activities, is valuable. Reclamation are currently working to maintain 
and improve western yellow-billed cuckoo habitat, participating in 
working groups, and exchanging management information.
    Another possible benefit of the designation of critical habitat is 
that it may also affect the implementation of Federal laws, such as the 
Clean Water Act. These laws require analysis of the potential for 
proposed projects to significantly affect the environment. Critical 
habitat may signal the presence of sensitive habitat that could 
otherwise be missed in the review process for these other environmental 
laws.
    Finally, there is the possible benefit that additional funding 
could be generated for habitat improvement by an area being designated 
as critical habitat. Some funding sources may rank a project higher if 
the area is designated as critical habitat. Therefore, having an area 
designated as critical habitat could improve the chances of receiving 
funding for western yellow-billed cuckoo habitat-related projects.

Benefits of Exclusion--American Falls Reservoir

    The main benefit of excluding Reclamation managed lands associated 
with the American Falls Reservoir from designated critical habitat is 
to remove any potential conflict with the Congressionally authorized 
project purposes of the American Fall Reservoir Federal Water Resource 
Project. We have already developed an effective approach to 
conservation of the western yellow-billed cuckoo, its habitat, and 
other species in this area.
    During the development of the western yellow-billed cuckoo critical 
habitat proposal, we have communicated with Reclamation to discuss how 
they might be affected by the regulations associated with western 
yellow-billed cuckoo management, western yellow-billed cuckoo recovery, 
and the designation of critical habitat. As part of these discussions, 
we have provided technical assistance to Reclamation to conserve the 
western yellow-billed cuckoo and its habitat on their lands. 
Reclamation implemented the EBSM and included measures taken in efforts 
to conserve western yellow-billed cuckoo habitat that we have in our 
supporting record for this decision.
    Reclamation, through their EBSM, address western yellow-billed 
cuckoo habitat. The proposed critical habitat segment we identified on 
lands managed by Reclamation are where western yellow-billed cuckoo 
have been recorded (or are expected to occur). Reclamation have 
demonstrated that maintaining western yellow-billed cuckoo habitat, 
while meeting their regulatory obligations is a priority. Reclamation, 
through their previous management actions and the implementation of the 
EBSM, have a demonstrated record of their commitment to the 
conservation of cottonwood forest habitat important to western yellow 
billed-cuckoo including; reducing impacts from livestock grazing, 
increasing cottonwood regeneration, decreasing the spread of nonnative 
plants, and maintaining and improving riparian conditions. Specific 
habitat improvements previously carried out within this inundation zone 
include the termination of a 500-unit livestock grazing lease, 
repairing riparian fencing, the establishment of close working 
partnerships with adjacent landowners to support exclusion efforts, and 
completing annual noxious and invasive weed treatments. Lastly, 
Reclamation precludes construction of permanent structures in this 
area. Overall, these actions commit to management of riparian habitat 
that likely accomplishes

[[Page 20934]]

greater conservation than would be available through the implementation 
of a designation of critical habitat on a project-by-project basis.
    The designation of critical habitat on Reclamation lands associated 
with the full-pool of American Falls Reservoir may potentially impact 
the Congressionally authorized operation and maintenance of the Federal 
Water Resource Project. As such, exclusion would reduce the potential 
conflict and ensure that the Federal Water Resource Project would 
continue to operate unobstructed. This would further help to maintain 
our working relationship with Reclamation.
    The designation of critical habitat on Reclamation lands would be 
expected to indirectly impact our working relationship with other water 
users, since the American River Falls Reservoir is closely tied to 
water users in Idaho. The perceived restrictions of a critical habitat 
designation could have a damaging effect on coordination efforts, 
possibly preventing actions that might maintain, improve, or restore 
habitat for the western yellow-billed cuckoo and other species. For 
these reasons, we have determined that our working relationships with 
water users would be better maintained if we excluded the American 
River Falls Reservoir from the designation of western yellow-billed 
cuckoo critical habitat. We view this as a substantial benefit since we 
have developed a cooperative working relationship with Reclamation for 
the mutual benefit of western yellow-billed cuckoo conservation and 
other endangered and threatened species using this area.

Benefits of Exclusion Outweigh Benefits of Inclusion--American Falls 
Reservoir

    The benefits of including Reclamation lands in the critical habitat 
designation are limited to the incremental benefits gained through the 
regulatory requirement to consult under section 7 and consideration of 
the need to avoid adverse modification of critical habitat, agency and 
educational awareness, and potential additional grant funding. However, 
we have determined that these benefits are minimized because they are 
provided for through other mechanisms, such as (1) the conservation 
benefits to the western yellow-billed cuckoo and its habitat from 
implementation of EBSM and other conservation actions; and (2) the 
maintenance of effective collaboration and cooperation to promote the 
conservation of the western yellow-billed cuckoo and its habitat.
    Because Reclamation has developed and implemented the EBSM and are 
aware of the value of their lands for western yellow-billed cuckoo 
conservation, the conservation and educational benefits of a western 
yellow-billed cuckoo critical habitat designation are minimized.
    The benefits of excluding these areas from being designated as 
western yellow-billed cuckoo critical habitat are more significant and 
include avoiding conflict with Congressionally authorized purposes of 
the reservoir, and encouraging the continued implementation of the EBSM 
and conservation measures such as habitat management and protection, 
reduction of livestock impacts, and annul riparian planting efforts. 
The exclusion of these areas will likely also provide additional 
benefits to the western yellow-billed cuckoo and other listed species 
that would not otherwise be available without the Service's maintaining 
a cooperative working relationship with Reclamation. In conclusion, we 
find that the benefits of excluding Reclamation lands associated with 
the full-pool of American Falls Reservoir in Idaho, from critical 
habitat designation outweigh the benefits of including these areas.

Exclusion Will Not Result in Extinction--American Falls Reservoir

    We have determined that exclusion of Reclamation lands associated 
with the full-pool of American Falls Reservoir from the critical 
habitat designation are significant and will not result in the 
extinction of the western yellow-billed cuckoo. We base this 
determination on several points. Firstly, as discussed above under 
Effects of Critical Habitat Designation Section 7 Consultation, if a 
Federal action or permitting occurs, the known presence of western 
yellow-billed cuckoos or their habitat would require evaluation under 
the jeopardy standard of section 7 of the Act, even absent the 
designation of critical habitat, and thus will protect the species 
against extinction. Secondly, Reclamation have committed to protecting 
and managing western yellow-billed cuckoo habitat through their EBSM 
approach and implementation of conservation actions. We have determined 
that this commitment accomplishes greater conservation than would be 
available through the implementation of a designation of critical 
habitat on a project-by-project basis. With the implementation of these 
plans, we have concluded that this exclusion from critical habitat will 
not result in the extinction of the western yellow-billed cuckoo. 
Accordingly, we have determined that 1,352 ac (547 ha) of Reclamation 
lands associated with the full-pool of American Falls Reservoir are 
excluded under subsection 4(b)(2) of the Act because the benefits of 
excluding these lands from critical habitat for the western yellow-
billed cuckoo outweigh the benefits of their inclusion, and the 
exclusion of these lands from the designation will not result in the 
extinction of the species.
Unit 37 (NM-6B) Middle Rio Grande and Unit 39 (NM-8AB) Caballo Delta--
Bureau of Reclamation Yellow-Billed Cuckoo Management Plan
    The Elephant Butte and Caballo Reservoirs (Reservoirs) near Truth 
or Consequences, in Sierra County, New Mexico are owned and operated by 
Reclamation. We are excluding portions of the upper reaches of Elephant 
Butte Reservoir (Unit 37 NM-6B 8,091 ac (3.274 ha)) and the entire 
Caballo Reservoir (Unit 39 NM-8A and 8B (245 ac (120 ha)) from critical 
habitat. Reclamation has a Congressionally authorized purpose of 
managing these reservoirs and delivering water to downstream users. 
Through their historical conservation efforts and consultation history, 
Reclamation has demonstrated a commitment to management practices 
within both Reservoirs that have benefited the western yellow-billed 
cuckoo population over the past decade and a half while still meeting 
their Congressionally authorized responsibilities. The riparian habitat 
within these Reservoirs now supports a large number of nesting western 
yellow-billed cuckoos. In both these Reservoirs, the filling and draw-
down of surface water mimics the flooding and drying events associated 
with intact riparian woodland habitat and river systems providing 
habitat for the western yellow-billed cuckoo. However, these areas 
could also be completely inundated with surface water on occasion and 
thus, provide no habitat other than what is available in adjacent 
areas. For Elephant Butte Reservoir, we identified the area from the 
dam at Elephant Butte Reservoir upstream to RM 54 as the active 
reservoir pool (as opposed to the full pool location of approximately 
RM 62). From a practicality standpoint, RM 54 is as far upstream as the 
reservoir has been modeled to receive surface water over the next 30 
years in a scenario providing the wettest conditions (Reclamation 2015, 
entire; Service 2016b, entire). In the model, the reservoir would reach 
RM 54 for short intervals of time in 3 separate events.
    Reclamation has supported collecting annual western yellow-billed 
cuckoo population data since 2006 at Elephant Butte Reservoir (even 
prior to the

[[Page 20935]]

species' listing and prior to the establishment of a formal survey 
protocol). Over the last decade and a half, Reclamation has assisted in 
the development of the formal survey protocol and has also instructed 
training courses. The ongoing survey effort within Elephant Butte and 
Caballo Reservoirs indicate that the western yellow-billed cuckoo is a 
common summer resident.
    Through these efforts, and the recent development in including the 
western yellow-billed cuckoo within their Management Plan, Reclamation 
has demonstrated a commitment to management practices within their 
Reservoirs that have conserved and benefited the western yellow-billed 
cuckoo population in that area over the past decade and a half. In 
addition, Reclamation funded scientific research within Elephant Butte 
Reservoir and surrounding areas that has contributed to the 
understanding of habitat selection and distribution of the western 
yellow-billed cuckoo such as telemetry and home range studies, and 
geolocator studies to better understand migration patterns. Considering 
the past and ongoing efforts of management and research to benefit the 
western yellow-billed cuckoo, done in coordination and cooperation with 
the Service, we find the benefits of excluding areas more prone to 
surface water inundation within Elephant Butte Reservoir in the Middle 
Rio Grande Unit and Caballo Delta Units outweigh the benefits of 
including it in critical habitat.
    In addition to the conservation effort described above, Reclamation 
works with BLM to ensure grazing is minimized during the breeding 
season for the western yellow-billed cuckoo. They also map habitat 
characteristics of the riparian habitat in intervals less than 5 years 
to ensure that suitable habitat for the western yellow-billed cuckoo is 
not a limiting factor. These long practiced flexible and adaptive 
management practices are provided as examples which have resulted in 
the expansion, protection, and successful continuance of a western 
yellow-billed cuckoo population, and have also provided benefit to 
other listed species such as the southwestern willow flycatcher.

Benefits of Inclusion--Bureau of Reclamation Yellow-Billed Cuckoo 
Management Plan

    As discussed above under Effects of Critical Habitat Designation 
Section 7 Consultation, Federal agencies, in consultation with the 
Service, must ensure that their actions are not likely to jeopardize 
the continued existence of any listed species or result in the 
destruction or adverse modification of any designated critical habitat 
of such species. The difference in the outcomes of the jeopardy 
analysis and the adverse modification analysis represents the 
regulatory benefit and costs of critical habitat. A critical habitat 
designation requires Federal agencies to consult on whether their 
activity would destroy or adversely modify critical habitat to the 
point where recovery could not be achieved.
    Another possible benefit is that the designation of critical 
habitat can serve to educate landowners and the public regarding the 
potential conservation value of an area, and this may focus and 
contribute to conservation efforts by other parties by clearly 
delineating areas of high conservation value for certain species. Any 
information about the western yellow-billed cuckoo and its habitat that 
reaches a wide audience, including other parties engaged in 
conservation activities, would be considered valuable.
    Another possible benefit of the designation of critical habitat is 
that it may also affect the implementation of Federal laws, such as the 
Clean Water Act. These laws require analysis of the potential for 
proposed projects to significantly affect the environment. Critical 
habitat may signal the presence of sensitive habitat that could 
otherwise be missed in the review process for these other environmental 
laws. Finally, there is the possible benefit that additional funding 
could be generated for habitat improvement by an area being designated 
as critical habitat. Some funding sources may rank a project higher if 
the area is designated as critical habitat. Therefore, having an area 
designated as critical habitat could improve the chances of receiving 
funding for western yellow-billed cuckoo habitat-related projects.

Benefits of Exclusion--Bureau of Reclamation Yellow-Billed Cuckoo 
Management Plan

    We have determined that significant benefits would be realized by 
excluding areas within Elephant Butte and Caballo Reservoirs. Our 
reasoning for our determination includes: (1) The management regime and 
commitments by Reclamation provide a more holistic approach toward 
implementing conservation actions to protect and enhance western 
yellow-billed cuckoos and their habitat than a case-by-case section 7 
consultation process would provide; and (2) an exclusion would give 
Reclamation better flexibility to meet its Congressionally authorized 
responsibilities for water storage and delivery while still providing 
conservation for the western yellow-billed cuckoo. As mentioned above, 
Reclamation is an important land manager in the Middle and Lower Rio 
Grande. The surveys, conservation, restoration and management 
information submitted by Reclamation within their Southwestern Willow 
Flycatcher and Yellow-billed Cuckoo Management Plan document that 
meaningful collaborative and cooperative work for the western yellow-
billed cuckoo and its habitat will continue within Elephant Butte and 
Caballo Reservoirs. We have determined that the results of these 
activities promote long-term protection and conserve the western 
yellow-billed cuckoo and its habitat within Elephant Butte and Caballo 
Reservoirs, as well as the riparian habitat in surrounding areas. 
Reclamation, through their historical efforts and inclusion of the 
western yellow-billed cuckoo within their management plan has committed 
to development of habitat to support nesting activity of the species 
outside the reservoir pools, this includes items such as realigning 
approximately 8 mi (12.8 km) of river to mimic the dynamic process of 
river movement to an area of a lower elevation which will result in 
roughly 800 ac (324 ha) of potential western yellow-billed cuckoo 
habitat, as well as roughly 2,000 ac (809 ha) of potential habitat 
restoration after the large Tiffany Fire in 2017. In all, as a result 
of the commitments associated with Reclamations' Southwestern Willow 
Flycatcher and Yellow-billed Cuckoo Management Plan, a potential of 
approximately 5,500 ac (2,226 ha) of habitat is expected to benefit the 
western yellow-billed cuckoo.
    The benefits of excluding areas within Elephant Butte and Caballo 
Reservoirs from critical habitat will give Reclamation management 
flexibility to meet its Congressionally authorized obligations and 
provide for better conservation than would be achieved from case-by-
case section 7 consultations.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Bureau of 
Reclamation Yellow-Billed Cuckoo Management Plan

    The benefits of including the areas within the Middle Rio Grande 
and Caballo Delta Units In the critical habitat designation are limited 
to the incremental benefits gained through the regulatory requirement 
to consult under section 7 and consideration of the need to avoid 
adverse modification of critical habitat, agency and educational 
awareness, potential additional grant funding, and the implementation 
of

[[Page 20936]]

other law and regulations. However, as discussed above, we have 
determined that these benefits are minimized because: (1) The current 
management regime and commitments by Reclamation provide a more 
holistic approach toward implementing conservation actions to protect 
and enhance western yellow-billed cuckoos and their habitat than a 
case-by-case section 7 consultation process would provide; and (2) the 
conservation benefits to the western yellow-billed cuckoo and its 
habitat from implementation of Reclamation's Western Yellow-billed 
Cuckoo Management Plan.
    The benefits of excluding this area from designation as critical 
habitat for the western yellow-billed cuckoo are significant, and 
include allowing Reclamation the flexibility to store and deliver water 
for this area and encouraging the continuation of adaptive management 
measures such as monitoring, surveys, research, enhancement, and 
restoration activities that Reclamation currently implements and plans 
for the future. The exclusion of this area will likely also provide 
additional benefits to the species by encouraging and maintaining a 
cooperative working relationship with stakeholders associated with 
water storage and delivery. The actions taken by Reclamation to manage 
and protect habitat needed for western yellow-billed cuckoo are above 
those conservation measures which may be required if the area was 
designated as critical habitat. As a result, we find that the benefits 
of excluding these areas from critical habitat designation outweigh the 
benefits of including these areas.

Exclusion Will Not Result in Extinction of the Species--Bureau of 
Reclamation Yellow-Billed Cuckoo Management Plan

    We have determined that exclusion of the Reclamation lands at 
Elephant Butte and Caballo Reservoirs from the critical habitat 
designation will not result in the extinction of the western yellow-
billed cuckoo. We base this determination on several points. Firstly, 
as discussed above under Effects of Critical Habitat Designation 
Section 7 Consultation, if a Federal action or permitting occurs, the 
known presence of western yellow-billed cuckoos or their habitat would 
require evaluation under the jeopardy standard of section 7 of the Act, 
even absent the designation of critical habitat, and thus will protect 
the species against extinction. Secondly, Reclamation's management of 
the areas will ensure the long-term persistence and protection of 
western yellow-billed cuckoo habitat within and/or adjacent to the 
Reservoirs and because Reclamation is committed to greater conservation 
measures within and/or adjacent to their Reservoirs than would be 
available through the designation of critical habitat. Accordingly, we 
have determined that areas of Elephant Butte (NM-6B) (8,091 ac (3,274 
ha)) and Caballo Reservoirs (Unit NM-8AB) (245 ac (120 ha)) are 
excluded under subsection 4(b)(2) of the Act because the benefits of 
exclusion outweigh the benefits of inclusion and will not cause the 
extinction of the species.

Required Determinations

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 Office of Information and Regulatory Affairs has determined 
that this rule is significant.
    Executive Order 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.

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.
    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.
    Under the RFA, as amended, and consistent with recent court 
decisions, Federal agencies are required to evaluate the potential 
incremental impacts of rulemaking only on those entities directly 
regulated by the rulemaking itself and, therefore, are not required to 
evaluate the potential impacts to indirectly regulated entities. The 
regulatory mechanism through which critical habitat protections are 
realized is section 7 of the Act, which requires Federal agencies, in 
consultation with the Service, to ensure that any action authorized, 
funded, or carried out by the agency is not likely to destroy or 
adversely modify critical habitat. Therefore, under section 7, only 
Federal action agencies are directly subject to the specific regulatory 
requirement (avoiding destruction and adverse modification) imposed by 
critical habitat designation. Consequently, it is our position that 
only Federal action agencies would be directly regulated if we adopt 
the proposed critical habitat designation. There is no requirement 
under the RFA to evaluate the potential impacts to entities not 
directly regulated. Moreover, Federal agencies are not small entities. 
Therefore, because no small entities would be directly

[[Page 20937]]

regulated by this rulemaking, the Service certifies that the final 
critical habitat designation will not have a significant economic 
impact on a substantial number of small entities.
    During the development of this final rule we reviewed and evaluated 
all information submitted during the comment period that may pertain to 
our consideration of the probable incremental economic impacts of this 
critical habitat designation. Based on this information, we affirm our 
certification that this final critical habitat designation will not 
have a significant economic impact on a substantial number of small 
entities.

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

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. We do not find that this critical habitat designation 
would significantly affect energy supplies, distribution, or use, as 
the areas identified as critical habitat are along riparian corridors 
in mostly remote areas with little energy supplies, distribution, or 
infrastructure in place. Moreover, the Administrator of the Office of 
Information and Regulatory Affairs did not otherwise designate this 
action as a significant energy action pursuant to the Executive order. 
Therefore, this action is not a significant energy action, and no 
Statement of Energy Effects is required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following finding:
    (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) We have determined that this rule will not significantly or 
uniquely affect small governments because it would not produce a 
Federal mandate of $100 million or greater in any year; that is, it is 
not a ``significant regulatory action'' under the Unfunded Mandates 
Reform Act. The designation of critical habitat imposes no obligations 
on State or local governments. By definition, Federal agencies are not 
considered small entities, although the activities they fund or permit 
may be proposed or carried out by small entities. Consequently, we have 
determined that the critical habitat designation would not 
significantly or uniquely affect small government entities. As such, a 
Small Government Agency Plan is not required.

Takings--Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for western yellow-billed cuckoo in a takings implications 
assessment. The Act does not authorize the Service to regulate private 
actions on private lands or confiscate private property as a result of 
critical habitat designation. Designation of critical habitat does not 
affect land ownership, or establish any closures, or restrictions on 
use of or access to the designated areas. Furthermore, the designation 
of critical habitat does not affect landowner actions that do not 
require Federal funding or permits, nor does it preclude development of 
habitat conservation programs or issuance of incidental take permits to 
permit actions that do require Federal funding or permits to go 
forward. However, Federal agencies are prohibited from carrying out, 
funding, or authorizing actions that would destroy or adversely modify 
critical habitat. A takings implications assessment has been completed 
and concludes that this designation of critical habitat does not pose 
significant takings implications for lands within or affected by the 
designation.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this final rule does 
not have significant federalism effects. A federalism summary impact 
statement is not required. In keeping with Department of the Interior 
and Department of Commerce policy, we requested information from, and 
coordinated development of this final critical habitat designation 
with, appropriate State resource agencies in Arizona, California, 
Colorado, Idaho, New Mexico, Texas, and Utah. From a federalism 
perspective, the designation of critical habitat directly affects only 
the responsibilities of Federal agencies.
    The Act imposes no other duties with respect to critical habitat, 
either for States and local governments, or for anyone else. As a 
result, the final rule does not have substantial direct effects either 
on the States, or on the relationship between the National Government 
and the States, or on the distribution of powers and responsibilities 
among the various levels of government. The designation may have some 
benefit to these governments because the areas that

[[Page 20938]]

contain the features essential to the conservation of the species are 
more clearly defined, and the physical or biological features of the 
habitat necessary for 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 State and local 
governments in long-range planning because they no longer have to 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) of the Act 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 would not 
unduly burden the judicial system and that it meets the requirements of 
sections 3(a) and 3(b)(2) of the order. We are designating critical 
habitat in accordance with the provisions of the Act. To assist the 
public in understanding the habitat needs of the species, this rule 
identifies the elements of physical or biological features essential to 
the conservation of the species. The designated areas of critical 
habitat are presented on maps, and the rule provides several options 
for the interested public to obtain more detailed location information, 
if desired.

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

    This rule does not contain information collection requirements, and 
a submission to the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not 
required. We may not conduct or sponsor and you are 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)). However, when the range of the species includes 
States within the Tenth Circuit, such as that of the western yellow-
billed cuckoo, 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 undertake a NEPA analysis for critical habitat 
designations.
    We invited the public to comment on our draft environmental 
assessment (Service 2019d, entire) and whether the proposed regulation 
may have a significant impact on the human environment, or fall within 
one of the categorical exclusions for actions that have no individual 
or cumulative effect on the quality of the human environment. We did 
not receive any comments or other information during the comment period 
for the revised proposed rule. Our 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. Copies of our final environmental 
assessment and Finding of No Significant Impact (Service 2021, entire) 
can be obtained by contacting the Field Supervisor of the Sacramento 
Fish and Wildlife Office, or on the Sacramento Fish and Wildlife Office 
website at http://www.fws.gov/sacramento (see ADDRESSES).

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.
    The following Tribes were contacted directly during the proposed 
and final rule process: Ak-Chin Indian Community; Fort Mojave Indian 
Tribe; Colorado River Indian Reservation; Fort Yuma Indian Reservation; 
Cocopah Indian Tribe; Chemehuevi Indian Tribe; Fort McDowell Yavapai 
Nation; Yavapai-Apache Nation; Yavapi-Prescott Indian Tribe; Tohono 
O'odham Nation; Tonto Apache Tribe; Havasupai Tribe; Hualapai Indian 
Tribe; Hopi Tribe; Pasua Yaqui Tribe; San Carlos Apache Tribe; Gila 
River Indian Community; Salt River Pima-Maricopa Indian Community; 
White Mountain Apache Tribe; Navajo Nation; Santa Clara, Ohkay Owingeh, 
and San Ildefonso Pueblos; Cochiti, Santo Domingo, San Felipe, Sandia, 
Santa Ana and Isleta Pueblos; Shoshone-Bannock, Fort Hall Reservation; 
the Cachil DeHe Band of Wintun Indians; and the Ute Tribe of the Uinta 
and Ouray Reservation. We will continue to work on a government-to-
government basis with Tribal entities on conservation of habitat after 
the designation of critical habitat for the western yellow-billed 
cuckoo.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at http://www.regulations.gov in Docket No. FWS-R8-ES-
2013-0011 and upon request from the Sacramento Fish and Wildlife Office 
(see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this final rule are the staff members of the 
Fish and Wildlife Service's Species Assessment Team and Service staff 
in each associated Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

[[Page 20939]]

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless 
otherwise noted.


0
2. Amend Sec.  17.11(h) by revising the entry for ``Cuckoo, yellow-
billed [Western DPS]'' under ``BIRDS'' in the List of Endangered and 
Threatened Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                     Vertebrate                      Listing
                                                                  population where                citations and
         Common name          Scientific name    Where listed       endangered or       Status      applicable
                                                                     threatened                       rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
            Birds
 
                                                  * * * * * * *
Cuckoo, yellow-billed         Coccyzus         U.S.A., Canada,  Western DPS: U.S.A.   T          79 FR 59991, 10/
 [Western DPS].                americanus.      Mexico,          (AZ, CA, CO                      3/2014; 50 CFR
                                                Central and      (western), ID, MT                17.95(b).CH
                                                South America.   (western), NM
                                                                 (western), NV, OR,
                                                                 TX (western), UT,
                                                                 WA, WY (western));
                                                                 Canada (British
                                                                 Columbia
                                                                 (southwestern);
                                                                 Mexico (Baja
                                                                 California, Baja
                                                                 California Sur,
                                                                 Chihuahua, Durango
                                                                 (western), Sinaloa,
                                                                 Sonora).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
3. In Sec.  17.95, amend paragraph (b) by adding an entry for ``Yellow-
billed Cuckoo (Coccyzus americanus), Western DPS'' after the entry for 
``MARIANA CROW (CORVUS KUBARYI)'' to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

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

Yellow-Billed Cuckoo (Coccyzus americanus), Western DPS

    (1) Critical habitat units are depicted for Arizona, California, 
Colorado, Idaho, New Mexico, Texas, and Utah, on the maps in this 
entry.
    (2) Within these areas, the specific physical or biological 
features essential to the conservation of western yellow-billed cuckoo 
consist of three components:
    (i) Rangewide breeding habitat. Riparian woodlands across the 
Distinct Population Segment (DPS); Southwestern breeding habitat, 
primarily in Arizona and New Mexico: Drainages with varying 
combinations of riparian, xeroriparian, and/or nonriparian trees and 
large shrubs. This physical or biological feature includes breeding 
habitat found throughout the DPS range as well as additional breeding 
habitat characteristics unique to the Southwest.
    (A) Rangewide breeding habitat (including areas in the Southwest). 
Rangewide breeding habitat is composed of riparian woodlands within 
floodplains or in upland areas or terraces often greater than 325 ft 
(100 m) in width and 200 ac (81 ha) or more in extent with an overstory 
and understory vegetation component in contiguous or nearly contiguous 
patches adjacent to intermittent or perennial watercourses. The slope 
of the watercourses is generally less than 3 percent but may be greater 
in some instances. Nesting sites within the habitat have an above-
average canopy closure (greater than 70 percent), and have a cooler, 
more humid environment than the surrounding riparian and upland 
habitats. Rangewide breeding habitat is composed of varying 
combinations of riparian species including the following nest trees: 
Cottonwood, willow, ash, sycamore, boxelder, alder, and walnut.
    (B) Southwestern breeding habitat. Southwestern breeding habitat, 
found primarily in Arizona and New Mexico, is more variable than 
rangewide breeding habitat. Southwestern breeding habitat occurs within 
or along perennial, intermittent, and ephemeral drainages in montane 
canyons, foothills, desert floodplains, and arroyos. It may include 
woody side drainages, terraces, and hillsides immediately adjacent to 
the main drainage bottom. Drainages intersect a variety of habitat 
types including, but not limited to, desert scrub, desert grassland, 
and Madrean evergreen woodlands (presence of oak). Southwestern 
breeding habitat is composed of varying combinations of riparian, 
xeroriparian, and/or nonriparian tree and large shrub species 
including, but not limited to, the following nest trees: Cottonwood, 
willow, mesquite, ash, hackberry, sycamore, walnut, desert willow, 
soapberry, tamarisk, Russian olive, juniper, acacia, and/or oak. In 
perennial and intermittent drainages, Southwestern riparian breeding 
habitat is often narrower, patchier, and/or sparser than rangewide 
riparian breeding habitat and may contain a greater proportion of 
xeroriparian trees and large shrub species. Although some cottonwood 
and willow may be present in Southwestern riparian habitat, 
xeroriparian species may be more prevalent. Mesquite woodland may be 
present within the riparian floodplain, flanking the outer edges of 
wetter riparian habitat, or scattered on the adjacent hillsides. The 
more arid the drainage, the greater the likelihood that it will be 
dominated by xeroriparian and nonriparian nest tree species. Arid 
ephemeral drainages in southeastern Arizona receive summer humidity and 
rainfall from the North American Monsoon, with a pronounced green-up of 
grasses and forbs. These arid ephemeral drainages often contain 
xeroriparian species like hackberry or nonriparian species associated 
with the adjacent habitat type like oak, mesquite, acacia, mimosa, 
greythorn, and juniper. In southeastern Arizona mountains, breeding 
habitat is typically below pine woodlands (~6,000 ft (1,829 m)).
    (ii) Adequate prey base. Presence of prey base consisting of large 
insect fauna (for example, cicadas, caterpillars, katydids, 
grasshoppers, large beetles, dragonflies, moth larvae, spiders), 
lizards, or frogs for adults and young in breeding areas during the 
nesting season and in post-breeding dispersal areas.
    (iii) Hydrologic processes. The movement of water and sediment in 
natural or altered systems that maintains and regenerates breeding

[[Page 20940]]

habitat. This physical or biological feature includes hydrologic 
processes found in rangewide breeding habitat as well as additional 
hydrologic processes unique to the Southwest in southwestern breeding 
habitat:
    (A) Rangewide breeding habitat hydrologic processes (including the 
Southwest). Hydrologic processes (either natural or managed) in river 
and reservoir systems that encourage sediment movement and deposits and 
promote riparian tree seedling germination and plant growth, 
maintenance, health, and vigor (e.g., lower-gradient streams and broad 
floodplains, elevated subsurface groundwater table, and perennial 
rivers and streams). In some areas where habitat is being restored, 
such as on terraced slopes above the floodplain, this may include 
managed irrigated systems that may not naturally flood due to their 
elevation above the floodplain.
    (B) Southwestern breeding habitat hydrologic processes. In 
southwestern breeding habitat, elevated summer humidity and runoff 
resulting from seasonal water management practices or weather patterns 
and precipitation (typically from North American Monsoon or other 
tropical weather events) provide suitable conditions for prey species 
production and vegetation regeneration and growth. Elevated humidity is 
especially important in southeastern Arizona, where cuckoos breed in 
intermittent and ephemeral drainages.
    (3) Critical habitat does not include humanmade structures (such as 
buildings, aqueducts, runways, roads, bridges, and other paved or 
hardened areas as a result of development) and the land on which they 
are located existing within the legal boundaries of the critical 
habitat units designated for the species on May 21, 2021. Due to the 
scale on which the critical habitat boundaries are developed, some 
areas within these legal boundaries may not contain the physical or 
biological features and therefore are not considered critical habitat.
    (4) Data layers defining map units were created on a base of the 
Natural Resources Conservation Service National Agriculture Imagery 
Program (NAIP 2011), and critical habitat was then mapped using North 
American Datum (NAD) 83, Universal Transverse Mercator Zone 10N 
coordinates. 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 Sacramento Fish 
and Wildlife Office's internet site at http://www.fws.gov/sacramento, 
or on http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0011. 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) Unit 1: CA/AZ-1, Colorado River 1; Imperial, Riverside, and San 
Bernardino Counties, California, and Yuma and La Paz Counties, Arizona. 
This unit was excluded from the designation pursuant to section 4(b)(2) 
of the Act.
    (6) Unit 2: CA/AZ-2, Colorado River 2; San Bernardino County, 
California, and Mohave County, Arizona. This unit was excluded from the 
designation pursuant to section 4(b)(2) of the Act.
    (7) Unit 3: AZ-1, Bill Williams River; Mohave and La Paz Counties, 
Arizona. This unit was excluded from the designation pursuant to 
section 4(b)(2) of the Act.
    (8) Unit 4: AZ-2, Alamo Lake, Mohave and La Paz Counties, Arizona. 
This unit was excluded from the designation pursuant to section 4(b)(2) 
of the Act.

[[Page 20941]]

    (9) Unit 5: AZ-3, Hassayampa River; Maricopa County, Arizona. Map 
of Unit 5 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.000


[[Page 20942]]


    (10) Unit 6: AZ-4, Agua Fria River; Yavapai County, Arizona. Map of 
Unit 6 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.001


[[Page 20943]]


    (11) Unit 7: AZ-5, Upper Verde River; Yavapai County, Arizona. Map 
of Unit 7 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.002


[[Page 20944]]


    (12) Unit 8: AZ-6, Oak Creek; Yavapai and Coconino Counties, 
Arizona. Map of Unit 8 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.003


[[Page 20945]]


    (13) Unit 9: AZ-7, Beaver Creek; Yavapai County, Arizona. Map of 
Unit 9 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.004


[[Page 20946]]


    (14) Unit 10: AZ-8, Lower Verde River and West Clear Creek; Yavapai 
County, Arizona. Map of Unit 10 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.005


[[Page 20947]]


    (15) Unit 11: AZ-9A and AZ-9B, Horseshoe Dam; Gila, Maricopa, and 
Yavapai Counties, Arizona. Maps of Unit 11 follow:
    (i) Map of Unit 11: AZ-9A, Horseshoe Dam.
    [GRAPHIC] [TIFF OMITTED] TR21AP21.006
    

[[Page 20948]]


    (ii) Map of Unit 11: AZ-9B, Horseshoe Dam.
    [GRAPHIC] [TIFF OMITTED] TR21AP21.007
    

[[Page 20949]]


    (16) Unit 12: AZ-10, Tonto Creek; Gila County, Arizona. Map of Unit 
12 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.008

    (17) Unit 13: AZ-11, Pinal Creek; Gila County, Arizona. This unit 
was excluded from the designation pursuant to section 4(b)(2) of the 
Act.

[[Page 20950]]

    (18) Unit 14: AZ-12, Bonita Creek; Graham County, Arizona. Map of 
Unit 14 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.009


[[Page 20951]]


    (19) Unit 15: AZ-13, San Francisco River; Greenlee County, Arizona. 
Map of Unit 15 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.010


[[Page 20952]]


    (20) Unit 16: AZ-14, Upper San Pedro River; Cochise County, 
Arizona. Map of Unit 16 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.011


[[Page 20953]]


    (21) Unit 17: AZ-15, Lower San Pedro River and Gila River; Pima, 
Pinal, and Gila Counties, Arizona. Map of Unit 17 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.012


[[Page 20954]]


    (22) Unit 18: AZ-16, Sonoita Creek; Santa Cruz County, Arizona. Map 
of Unit 18 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.013


[[Page 20955]]


    (23) Unit 19: AZ-17, Upper Cienega Creek; Pima County, Arizona. Map 
of Unit 19 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.014


[[Page 20956]]


    (24) Unit 20: AZ-18, Santa Cruz River; Santa Cruz County, Arizona. 
Map of Unit 20 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.015


[[Page 20957]]


    (25) Unit 21: AZ-19, Black Draw; Cochise County, Arizona. Map of 
Unit 21 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.016


[[Page 20958]]


    (26) Unit 22: AZ-20, Gila River 1; Graham County, Arizona. Map of 
Unit 22 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.017


[[Page 20959]]


    (27) Unit 23: AZ-21, Salt River; Gila County, Arizona. Map of Unit 
23 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.018


[[Page 20960]]


    (28) Unit 24: AZ-22, Lower Cienega Creek; Pima County, Arizona. Map 
of Unit 24 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.019


[[Page 20961]]


    (29) Unit 25: AZ-23, Blue River; Greenlee County, Arizona. Map of 
Unit 25 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.020


[[Page 20962]]


    (30) Unit 26: AZ-24, Pinto Creek South; Gila and Pinal Counties, 
Arizona. Map of Unit 26 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.021


[[Page 20963]]


    (31) Unit 27: AZ-25, Aravaipa Creek; Pinal and Graham Counties, 
Arizona. Map of Unit 27 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.022


[[Page 20964]]


    (32) Unit 28: AZ-26, Gila River 2; Graham and Greenlee Counties, 
Arizona. Map of Unit 28 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.023


[[Page 20965]]


    (33) Unit 29: AZ-27, Pinto Creek North; Gila County, Arizona. Map 
of Unit 29 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.024


[[Page 20966]]


    (34) Unit 30: AZ-28, Mineral Creek; Pinal and Gila Counties, 
Arizona. Map of Unit 30 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.025


[[Page 20967]]


    (35) Unit 31: AZ-29, Big Sandy River; Mohave County, Arizona. Map 
of Unit 31 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.026


[[Page 20968]]


    (36) Unit 32: NM-1, San Francisco River; Catron County, New Mexico. 
Map of Unit 32 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.027


[[Page 20969]]


    (37) Unit 33: NM-2, Gila River; Grant County, New Mexico. Map of 
Unit 33 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.028


[[Page 20970]]


    (38) Unit 34: NM-3A and NM-3B, Mimbres River; Grant County, New 
Mexico. Maps of Unit 34 follow:
    (i) Map of Unit 34: NM-3A, Mimbres River.
    [GRAPHIC] [TIFF OMITTED] TR21AP21.029
    

[[Page 20971]]


    (ii) Map of Unit 34: NM-3B, Mimbres River.
    [GRAPHIC] [TIFF OMITTED] TR21AP21.030
    

[[Page 20972]]


    (39) Unit 35: NM-4, Upper Rio Grande 1; Rio Arriba County, New 
Mexico. Map of Unit 35 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.031

    (40) Unit 36: NM-5, Upper Rio Grande 2; Santa Fe and Rio Arriba 
Counties, New Mexico. This unit was excluded from the designation 
pursuant to section 4(b)(2) of the Act.

[[Page 20973]]

    (41) Unit 37: NM-6A and NM-6B, Middle Rio Grande; Sierra, Socorro, 
Valencia and Bernalillo Counties, New Mexico. Unit 37: NM-6A was 
excluded from the designation pursuant to section 4(b)(2) of the Act. 
Map of Unit 37: NM-6B, Middle Rio Grande, follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.032


[[Page 20974]]


    (42) Unit 38: NM-7, Upper Gila River; Grant and Hidalgo Counties, 
New Mexico. Map of Unit 38 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.033

    (43) Unit 39: NM-8A, Caballo Delta North and NM-8B, Caballo Delta 
South; Sierra County, New Mexico. This unit was excluded from the 
designation pursuant to section 4(b)(2) of the Act.
    (44) Unit 40: NM-9, Animas; Sierra County, New Mexico. This unit 
was excluded from the designation pursuant to section 4(b)(2) of the 
Act.
    (45) Unit 41: NM-10, Selden Canyon and Radium Springs; Do[ntilde]a 
Ana County, New Mexico. This unit was excluded from the designation 
pursuant to section 4(b)(2) of the Act.

[[Page 20975]]

    (46) Unit 42: AZ-30, Arivaca Wash and San Luis Wash; Pima County, 
Arizona. Map of Unit 42 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.034

    (47) Unit 43: AZ-31, Florida Wash; Pima and Santa Cruz Counties, 
Arizona. Map of Unit 43 follows:

[[Page 20976]]

[GRAPHIC] [TIFF OMITTED] TR21AP21.035


[[Page 20977]]


    (48) Unit 44: AZ-32, California Gulch; Santa Cruz County, Arizona. 
Map of Unit 44 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.036


[[Page 20978]]


    (49) Unit 45: AZ-33, Sycamore Canyon; Santa Cruz County, Arizona. 
Map of Unit 45 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.037


[[Page 20979]]


    (50) Unit 46: AZ-34, Madera Canyon; Pima and Santa Cruz Counties, 
Arizona. Map of Unit 46 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.038


[[Page 20980]]


    (51) Unit 47: AZ-35, Montosa Canyon; Santa Cruz County, Arizona. 
Map of Unit 47 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.039


[[Page 20981]]


    (52) Unit 48: AZ-36, Patagonia Mountains; Santa Cruz County, 
Arizona. Map of Unit 48 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.040


[[Page 20982]]


    (53) Unit 49: AZ-37, Canelo Hills; Santa Cruz County, Arizona. Map 
of Unit 49 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.041


[[Page 20983]]


    (54) Unit 50: AZ-38, Arivaca Lake; Pima and Santa Cruz Counties, 
Arizona. Map of Unit 50 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.042


[[Page 20984]]


    (55) Unit 51: AZ-39, Peppersauce Canyon; Pinal County, Arizona. Map 
of Unit 51 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.043


[[Page 20985]]


    (56) Unit 52: AZ-40, Pena Blanca Canyon; Santa Cruz County, 
Arizona. Map of Unit 52 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.044


[[Page 20986]]


    (57) Unit 53: AZ-41, Box Canyon; Pima County, Arizona. Map of Unit 
53 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.045


[[Page 20987]]


    (58) Unit 54: AZ-42, Rock Corral Canyon; Santa Cruz County, 
Arizona. Map of Unit 54 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.046


[[Page 20988]]


    (59) Unit 55: AZ-43, Lyle Canyon; Santa Cruz and Cochise Counties, 
Arizona. Map of Unit 55 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.047


[[Page 20989]]


    (60) Unit 56: AZ-44, Parker Canyon Lake; Santa Cruz and Cochise 
Counties, Arizona. Map of Unit 56 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.048


[[Page 20990]]


    (61) Unit 57: AZ-45, Barrel Canyon; Pima County, Arizona. Map of 
Unit 57 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.049


[[Page 20991]]


    (62) Unit 58: AZ-46, Gardner Canyon; Pima and Santa Cruz Counties, 
Arizona. Map of Unit 58 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.050


[[Page 20992]]


    (63) Unit 59: AZ-47, Brown Canyon; Pima County, Arizona. Map of 
Unit 59 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.051


[[Page 20993]]


    (64) Unit 60: AZ-48, Sycamore Canyon; Santa Cruz County, Arizona. 
Map of Unit 60 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.052


[[Page 20994]]


    (65) Unit 61: AZ-49, Washington Gulch; Santa Cruz County, Arizona. 
Map of Unit 61 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.053


[[Page 20995]]


    (66) Unit 62: AZ-50, Paymaster Spring and Mowry Wash; Santa Cruz 
County, Arizona. Map of Unit 62 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.054


[[Page 20996]]


    (67) Unit 63: CA-1, Sacramento River, Colusa, Glenn, Butte, and 
Tehama Counties, California. Map of Unit 63 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.055


[[Page 20997]]


    (68) Unit 64: CA-2, South Fork Kern River Valley; Kern County, 
California. Map of Unit 64 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.056


[[Page 20998]]


    (69) Unit 65: ID-1, Snake River 1; Bannock and Bingham Counties, 
Idaho. Map of Unit 65 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.057


[[Page 20999]]


    (70) Unit 66: ID-2, Snake River 2; Bonneville, Madison, and 
Jefferson Counties, Idaho. Map of Unit 66 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.058


[[Page 21000]]


    (71) Unit 67: ID-3, Henry's Fork and Teton Rivers; Madison and 
Fremont Counties, Idaho. Map of Unit 67 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.059


[[Page 21001]]


    (72) Unit 68: CO-1, Colorado River; Mesa County, Colorado. Map of 
Unit 68 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.060


[[Page 21002]]


    (73) Unit 69: CO-2, North Fork Gunnison River; Delta County, 
Colorado. Map of Unit 69 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.061


[[Page 21003]]


    (74) Unit 70: UT-1, Green River 1; Uintah and Duchesne Counties, 
Utah. Map of Unit 70 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.062


[[Page 21004]]


    (75) Unit 71: UT-2, Green River 2; Emery and Grand Counties, Utah. 
Map of Unit 71 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.063


[[Page 21005]]


    (76) Unit 72: TX-1, Terlingua Creek and Rio Grande; Brewster 
County, Texas. Map of Unit 72 follows:
[GRAPHIC] [TIFF OMITTED] TR21AP21.064

* * * * *

Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the 
Director U.S. Fish and Wildlife Service.
[FR Doc. 2021-07402 Filed 4-20-21; 8:45 am]
BILLING CODE 4333-15-C