[Federal Register: October 19, 2005 (Volume 70, Number 201)]
[Rules and Regulations]               
[Page 60885-61009]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19oc05-12]                         
 

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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



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


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT88

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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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

DATES: This rule is effective November 18, 2005.

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


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

SUPPLEMENTARY INFORMATION:

Designation of Critical Habitat Provides Little Additional Protection 
to Species

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

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

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

Procedural and Resource Difficulties in Designating Critical Habitat

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

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

Background

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

Previous Federal Actions

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

Summary of Comments and Recommendations

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

Peer Review

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

Peer Review Comments

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

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

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

[[Page 60890]]

provide regulatory authorization and unburden a landowner.

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

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

[[Page 60891]]

over 70 days where the public was able to examine these documents. We 
believe these two public comment periods of over 8 months for the 
proposal, and 43 days (but over 70 days to review) for the NEPA and 
economic analysis, provided adequate opportunity for public comment. In 
addition, due to the large scope of this rule and in order to comply 
with our September 30, 2005, court ordered date for completion of the 
final rule it would not have been possible to extend the comment period 
beyond July 18, 2005.
    (16) Comment: One commenter stated that the Service did not 
adequately notify landowners where proposed critical habitat was 
located. Another commenter expressed concern that the quality of the 
maps was poor and therefore, made it difficult for the public to 
adequately comment on the proposed revisions.
    Our Response: Due to the large scope of the proposed designation it 
was not possible to contact each landowner. However, we issued a widely 
disseminated news release regarding our proposal and published legal 
notices in major newspapers in areas involved in the proposal. We 
published numerous Federal Register notices including a notice of 
intent to conduct scoping for critical habitat, the critical habitat 
proposal, comment period extensions, notice of availability of draft 
documents, notices of scoping meetings and hearings. We sent out 
thousands of letters and cards to State and Federal government 
agencies, private individuals and groups, elected officials, and tribal 
governments also announcing the proposal, document availability, and 
public meetings/hearings. We also developed and sent out press releases 
concurrent with Federal Register notice announcements. A web page of 
southwestern willow flycatcher critical habitat materials was 
maintained at Arizona Ecological Services Web Site http://www.fws.gov/arizonaes.
 Public meetings, open houses and/or hearings on the 

published proposal were held in the following locations: February 17, 
2005--Camp Verde, AZ (sponsored by Verde Watershed Association); May 2, 
2005, Escondido, CA; May 3, 2005, Chino, CA; May 9, 2005, Las Vegas, 
NV; May 10, 2005, Lake Isabella, CA; May 16, 2005, Mesa, AZ; May 17, 
2005, Silver City, NM; May 18, 2005, Albuquerque, NM; May 19, 2005, 
Alamosa, CO; May 24, 2005--Bishop, CA (sponsored by Los Angeles Water 
and Power Authority); July 7, 2005--Safford, AZ (sponsored by Graham 
County). NEPA scoping meetings were held at Escondido, Chino, and Lake 
Isabella, CA; Phoenix, AZ; Las Vegas, NV; Silver City and Albuquerque, 
NM, and Alamosa, CO in early 2004.
    Maps delineating the boundaries of critical habitat were included 
in the October 12, 2004, proposed rule, and posted at http://criticalhabitat.fws.gov
 were specific GIS layers of the proposed 

critical habitat. In the proposed rule we provided contact information 
for eight Service Field Offices for anyone seeking assistance with the 
proposed critical habitat. Therefore, we believe that we made every 
effort possible to reach all interested parties and provide avenues for 
them to obtain information concerning our proposal and supporting 
documents.
    (17) Comment: One commenter stated that local land use controls 
provide sufficient protection for the southwestern willow flycatcher.
    Our Response: Although there are other State, local, and Federal 
laws that offer some protection to endangered species and their 
habitats (e.g., Clean Water Act and California Environmental Quality 
Act), none provide the same level of protection and review for 
threatened and endangered species as does the Act. These laws are not 
redundant and work in concert to provide protection for environmental 
resources.
    (18) Comment: Some comments expressed that the Service failed to 
identify special management considerations related to a variety of 
lands across the subspecies range.
    Our Response: In our proposed designation of critical habitat for 
the southwestern willow flycatcher that published on October 12, 2004 
(69 FR 60706), we identified special management considerations shared 
by all stream segments proposed for southwestern willow flycatcher 
critical habitat. We cited threats such as loss and modification of 
habitat due to industrial, agricultural, and urban developments, and 
directed the reader to locations where the threats are described in 
great detail in the final listing rule (60 FR 10694, February 27, 
1995), the previous critical habitat designation (62 FR 39129, July 22, 
1997), and the final recovery plan (USFWS 2002). We note there are 
complete appendices included in the Recovery Plan (USFWS: Appendices A-
O) that elaborate on rangewide southwestern willow flycatcher 
management issues focusing on water management, livestock grazing, 
recreation, cowbird parasitism, habitat restoration, exotic plants, 
fire management, recreation, etc.
    (19) Comment: One comment asked whether on-going activities, such 
as routine inspections, road grading, and construction adjacent to 
designated critical habitat are considered to appreciably decrease 
habitat values or quality through indirect effects.
    Our Response: The effects of any such activities on critical 
habitat must be considered by the Federal agency planning to conduct 
such activities. The action agency determines whether their action(s) 
``may affect'' the southwestern willow flycatcher or its primary 
constituent elements within the adjacent critical habitat based on 
their analyses. If so, the action agency would enter into consultation 
with us under section 7. We do not anticipate that grading existing 
roads or inspection of existing developed areas would likely result in 
an effect to critical habitat. Construction, depending on the type of 
activity, could have adverse effects, especially if it indirectly 
resulted in impacts to habitat such as groundwater pumping, channel 
manipulation, habitat trampling, etc.
    (20) Comment: Several comments expressed concern that commercial 
activities, such as mining, mineral prospecting, agriculture, etc. 
would be prohibited or severely restricted by a designation of critical 
habitat.
    Our Response: Section 7(a)(2) of the Act requires Federal agencies 
to ensure that activities they authorize, fund, or carry out are not 
likely to jeopardize the continued existence of such a species or 
result in the destruction or adverse modification of critical habitat. 
If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Through this consultation, the action agency 
ensures that their actions do not destroy or adversely modify critical 
habitat. Section 7 of the Act does not apply to activities on private 
or other non-Federal lands that do not involve a Federal nexus, and 
critical habitat designation would not provide any additional 
protections under the Act for private or non-Federal activities. 
Critical habitat does not prohibit private or commercial activities 
from occurring. However, all parties, Federal, State, private, and 
tribal are unable to take (e.g., harm, harass, pursue) listed species 
under section 9 without the appropriate permit.
    (21) Comment: Some comments suggested that the designation of 
critical habitat would prohibit mosquito abatement programs.
    Our Response: The Service does not believe that mosquito abatement 
programs focused in communities and developed areas necessarily pose a 
risk to southwestern willow flycatchers. We

[[Page 60892]]

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

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

    (22) Comment: Some questioned the scientific evidence used to 
determine critical habitat, one describing it as junk science.
    Our Response: In designating critical habitat for the southwestern 
willow flycatcher, we have used the best available scientific and 
commercial information, including results of numerous surveys, peer-
reviewed literature, unpublished reports by scientists and biological 
consultants, habitat models (Hatten and Paradzick 2003; Dockens and 
Paradzick 2004), a stakeholder-driven Recovery Plan (USFWS 2002), and 
expert opinion from biologists with extensive experience studying the 
southwestern willow flycatcher and its habitat. Further, information 
provided in comments on the proposed designation and the draft economic 
analysis were evaluated and taken into consideration in the development 
of this final designation, as appropriate. The literature cited for 
this rule is posted at http://www.fws.gov/arizonaes/. Also, the 

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

[[Page 60893]]

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

[[Page 60894]]

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

[[Page 60895]]

criticalhabitat.fws.gov. We also published legal descriptions in the 
proposed rule and this final rule identifying the lateral extent of 
critical habitat.
    (35) Comment: Some commented that the lateral extent of critical 
habitat is too broad. One wrote that the Service may need to establish 
a corridor, but it need not be this broad. To simply say that because 
the river may wander it should encompass the entire alluvial plain is 
simply overreaching.
    Our Response: We used the best available technology (existing 
digital sources and expert visual interpretation of aerial photographs 
and satellite imagery) to map the riparian zone within river corridors 
in proposed areas across six States. In developing the lateral extent, 
we found that using existing data sources such as the 100-year 
floodplain was in some places, too wide. However, in other areas, the 
entire 100-year floodplain was appropriate because it encompassed 
available flycatcher habitat. However, throughout the entire 
designation, the lateral extent is constrained to areas either equal to 
or less than the 100-year floodplain. Our visual interpretation 
examined the boundaries of actual riparian vegetation growth in order 
to ensure accuracy. Therefore, these locations are the areas where 
rivers flow and sandy soils exist and riparian vegetation grows. We do 
not extend our boundaries into traditionally developed areas 
(commercial and housing) outside of the 100-year floodplain.
    (36) Comment: Some commented that we inappropriately omitted 
important plant species used by southwestern willow flycatchers under 
primary constituent element number 1.
    Our Response: In order to not be redundant, we provided great 
detail in the text supporting the PCEs and the known plant species used 
by nesting southwestern willow flycatchers (69 FR 60714) by citing the 
Recovery Plan (USFWS 2002: D-3, 5, and 9). In response to this comment, 
we have altered the language of this PCE to include those known 
riparian plant species important for southwestern willow flycatchers.
    (37) Comment: Comments were provided using the results of Arizona 
Game and Fish Department's Mapping and Monitoring Southwestern Willow 
Flycatcher Breeding Habitat in Arizona: A Remote Sensing Approach 
(Dockens and Paradzick 2004) to demonstrate that river segments were 
not occupied by the flycatcher and segments did not have the PCEs.
    Our Response: We reviewed and considered this model, but did not 
rely solely on it in the development of our proposed designation due to 
the limitations of the results that the authors of the model described 
in their report. They described, ``this model provides a snapshot in 
time of predicted suitable (nesting) habitat * * * reoccurring 
disturbances influence the distribution and abundance of SWWF 
(southwestern willow flycatcher) breeding habitat in any one year.'' 
Therefore, the results of this model do not account for the dynamics of 
habitat over time. The authors also described other limitations in the 
use of the results of their model as a conservation tool. They wrote, 
``The model only predicts suitable nesting habitat and does not predict 
all habitat used by nesting SWWF. Nesting habitat is one part of a 
larger matrix of habitat used by SWWF during the migration and breeding 
season.''
    (38) Comment: Some provided comment that we should not designate 
critical habitat in Elephant Butte Reservoir on the Rio Grande in NM 
for a variety of reasons. Additionally, some commented that the power 
lines were an inadequate boundary for the southern boundary of the 
middle Rio Grande segment, because it may not be a permanent location.
    Our Response: The conservation space of Elephant Butte Reservoir 
was not part of the proposal, and therefore, is not included in the 
critical habitat designation. The description of the southern boundary 
of the Middle Rio Grande segment as the power line crossing upstream of 
Elephant Butte Reservoir is to provide readers with an easily 
identifiable reference point. The mapping of critical habitat 
boundaries is permanent with legal descriptions for the boundaries, and 
mapped boundaries are found in GIS layers at http://criticalhabitat.fws.gov
.

    (39) Comment: Some commented that our proposal included segments of 
tributaries and washes not described in the text, specifically areas 
along the upper Rio Grande, Verde River, and San Pedro River.
    Our Response: We agree. There were short stream segments of 
adjacent side drainages described in the legal descriptions and in the 
maps that were not described in the text of the proposal. We have re-
examined the proposed segments and removed these short side drainages 
(creek, rivers, washes, etc.) that were not described in the text that 
extend beyond the stream segments proposed. We note that at the 
confluence of a tributary and main stem it is difficult to 
differentiate between habitats, therefore, we used our best judgment on 
where to specifically draw the line.
    (40) Comment: Some commented that because numerical recovery goals 
were reached in the San Luis Valley Management Unit and the Santa Ana 
Management Unit, that critical habitat should not be designated within 
these areas.
    Our Response: Our methodology for critical habitat specifically 
targeted the locations where large populations or small populations in 
high connectivity that equaled a large population exist. This, we 
believe, adheres to the principles of conservation biology described by 
the Recovery Team (USFWS 2002: 74-77). The Recovery Team (USFWS 2002: 
75) described that ``maintaining and augmenting existing breeding 
populations is a faster, easier, and more reliable way to maintain and 
achieve population goals. * * *'' ``Thus, maintenance and protection of 
existing populations is a priority.''
    The Santa Ana River and Santa Ana Management Unit possess a large 
population of flycatchers, with territories extending along the length 
of the Santa Ana River and along some of its tributaries. We note that 
the numerical goal for the Santa Ana Management Unit is 50 territories, 
and the most recent published information for this Management Unit 
cites 41 territories for 2003 (Durst et al. 2005). Compiled rangewide 
data does not yet exist for 2004. There are additional recovery goals 
associated with Management Units other than number of territories, such 
as maintenance of populations for at least 5 years, completed 
management plans, and habitat objectives not yet achieved (USFWS 2002: 
77-81).
    The San Luis Valley Management Unit, as commenters pointed out, has 
reached its numerical goal, reaching 73 territories in 2003 (Durst et 
al. 2005) and surpassing the goal of 50 territories. But other goals 
have not been met. For example, the population has not been maintained 
for 5 years and habitat objectives have not been reached. Please note 
though, that due to partnerships developed with the Service, we are 
excluding river segments found in the San Luis Valley Management Unit 
(see the Application of Section 3(5)(A) and 4(a)(3) and Exclusions 
Under Section 4(b)(2) of the Act section for a detailed discussion of 
this exclusion below).
    (41) Comment: Many commented that critical habitat should not be 
designated in areas such as the Middle Rio Grande due to the need to 
manage for fire.
    Our Response: It is our belief that the need for fire management, 
especially areas such as the Middle Rio Grande or

[[Page 60896]]

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

Comments Related to Military Lands

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

[[Page 60897]]

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

Comments Related to Tribal Lands

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

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

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

[[Page 60898]]

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

[[Page 60899]]

Comments Related to Economic Impacts and Analysis; Other Relevant 
Impacts

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

General Issues

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

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

Mining Issues

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

Water Issues

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

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