[Federal Register: July 12, 1999 (Volume 64, Number 132)]

[Rules and Regulations]               

[Page 37419-37440]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]





Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF36


Endangered and Threatened Wildlife and Plants; Designation of 

Critical Habitat for the Cactus Ferruginous Pygmy-owl (Glaucidium 

brasilianum cactorum)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 

critical habitat pursuant to the Endangered Species Act of 1973, as 

amended (Act), for the cactus ferruginous pygmy-owl (Glaucidium 

brasilianum cactorum). A total of approximately 296,240 hectares 

(731,712 acres) of riverine riparian and upland habitat are designated. 

Critical habitat is located in Pima, Cochise, Pinal, and Maricopa 

counties, Arizona. Section 7 of the Act prohibits destruction or 

adverse modification of critical habitat by any activity funded, 

authorized, or carried out by any Federal agency. As required by 

section 4 of the Act, the Service considered economic and other 

relevant impacts

[[Page 37420]]

prior to making a final decision on the size and configuration of 

critical habitat.

EFFECTIVE DATE: August 11, 1999.

ADDRESSES: The complete administrative record for this rule is on file 

at the U.S. Fish and Wildlife Service, Arizona Ecological Services 

Field Office, 2321 West Royal Palm Road, Suite 103, Phoenix, Arizona 

85021-4951. The complete file for this rule is available for public 

inspection, by appointment, during normal business hours at the above 



Coordinator, at the above address (telephone 602/640-2720 ext. 240; 

facsimile 602/640-2730).



    The cactus ferruginous pygmy-owl (referred to as ``pygmy-owl'' in 

this final rule) is in the Order Strigiformes and the Family Strigidae. 

It is a small bird, approximately 17 centimeters (cm) (6\3/4\ inches 

(in)) long. Males average 62 grams (g) (2.2 ounces (oz)), and females 

average 75 g (2.6 oz). The pygmy-owl is reddish brown overall, with a 

cream-colored belly streaked with reddish brown. Some individuals are 

grayish brown, rather than reddish brown. The crown is lightly 

streaked, and paired black-and-white spots on the nape suggest eyes. 

This species lacks ear tufts, and the eyes are yellow. The tail is 

relatively long for an owl and is colored reddish brown with darker 

brown bars. The pygmy-owl is diurnal (active during daylight), and its 

call, heard primarily near dawn and dusk, is a monotonous series of 

short notes.

    The cactus ferruginous pygmy-owl is one of four subspecies of the 

ferruginous pygmy-owl. It occurs from lowland central Arizona south 

through western Mexico to the States of Colima and Michoacan, and from 

southern Texas south through the Mexican States of Tamaulipas and Nuevo 

Leon. Only the Arizona population of Glaucidium brasilianum cactorum is 

listed as an endangered species.

    The pygmy-owl in Arizona occurs in a variety of scrub and woodland 

communities, including riverbottom woodlands, woody thickets 

(``bosques''), Sonoran desertscrub, and semidesert grasslands. Unifying 

habitat characteristics among these communities are fairly dense woody 

thickets or woodlands, with trees and/or cacti large enough to provide 

nesting cavities. The pygmy-owl occurs at low elevations, generally 

below 1,200 meters (m) (4,000 feet (ft)) (Swarth 1914, Karalus and 

Eckert 1974, Monson and Phillips 1981, Johnsgard 1988, Enriquez-Rocha 

et al. 1993).

    The pygmy-owl's primary habitats historically were in riparian 

cottonwood (Populus fremontii) forests, but the subspecies currently 

occurs primarily in Sonoran desertscrub associations and mesquite 

bosques consisting of palo verde (Cercidium spp.), bursage (Ambrosia 

spp.), ironwood (Olneya tesota), mesquite (Prosopis velutina, and P. 

glandulosa), acacia (Acacia spp.), and giant cacti such as saguaro 

(Carnegiea giganteus) and organ pipe (Stenocereus thurberi) (Gilman 

1909, Bent 1938, van Rossem 1945, Phillips et al. 1964, Monson and 

Phillips 1981, Johnson-Duncan et al. 1988, Millsap and Johnson 1988). 

Primary prey include various reptiles, insects, birds, and small 

mammals (Proudfoot 1996).

    Pygmy-owls are considered non-migratory throughout their range by 

most authors, and have been reported during the winter months in 

several locations, including Organ Pipe Cactus National Monument (R. 

Johnson, unpubl. data 1976, 1980, Tibbitts, pers. comm. 1997). Major 

Bendire collected pygmy-owls along Rillito Creek near Camp Lowell at 

present-day Tucson on January 24, 1872. The University of Arizona Bird 

Collection contains a female pygmy-owl collected on January 8, 1953 

(University of Arizona 1995). Similarly, records exist from Sabino 

Canyon documenting pygmy-owls on December 3, 1941, and December 25, 

1950 (U.S. Forest Service, unpubl. data). These winter records 

demonstrate that pygmy-owls are found within Arizona throughout the 

year, and do not appear to migrate southward to warmer climates during 

the winter months.

Previous Federal Action

    We included Glaucidium brasilianum cactorum in our Animal Notice of 

Review as a category 2 candidate species throughout its range on 

January 6, 1989 (54 FR 554). Category 2 candidates were defined as 

those taxa for which we had data indicating that listing was possibly 

appropriate but for which we lacked substantial information on 

vulnerability and threats to support proposed listing rules. After 

soliciting and reviewing additional information, we elevated G. b. 

cactorum to category 1 status throughout its range in our November 21, 

1991, Notice of Review (56 FR 58804). Category 1 candidates were 

defined as those taxa for which we had sufficient information on 

biological vulnerability and threats to support proposed listing rules 

but for which issuance of proposals to list were precluded by other 

higher-priority listing activities. Beginning with our combined plant 

and animal notice of review published in the Federal Register on 

February 28, 1996 (61 FR 7596), we discontinued the designation of 

multiple categories of candidates and only taxa meeting the definition 

of former category 1 candidates are now recognized as candidates for 

listing purposes.

    On May 26, 1992, a coalition of conservation organizations (Galvin 

et al. 1992) petitioned us to list the pygmy-owl as an endangered 

species under the Act. The petitioners also requested designation of 

critical habitat. In accordance with section 4(b)(3)(A) of the Act, on 

March 9, 1993, we published a finding that the petition presented 

substantial scientific or commercial information indicating that 

listing of the pygmy-owl may be warranted and commenced a status review 

of the subspecies (58 FR 13045). As a result of information collected 

and evaluated during the status review, including information collected 

during a public comment period, we published a proposed rule to list 

the pygmy-owl as endangered in Arizona and threatened in Texas on 

December 12, 1994 (59 FR 63975). We proposed designation of critical 

habitat in Arizona. After a review of all comments received in response 

to the proposed rule, we published a final rule on March 10, 1997 (62 

FR 10730), listing the pygmy-owl as endangered in Arizona. We 

determined that listing in Texas was not warranted. We also determined 

that critical habitat designation for the Arizona population was not 


    On October 31, 1997, the Southwest Center for Biological Diversity 

filed a lawsuit in Federal District Court in Arizona against the 

Secretary of the Department of the Interior (Secretary) for failure to 

designate critical habitat for the cactus ferruginous pygmy-owl and the 

plant, Lilaeopsis schaffneriana var. recurva, (Huachuca water umbel) 

(Southwest Center for Biological Diversity v. Babbitt, CIV 97-704 TUC 

ACM). On October 7, 1998, Alfredo C. Marquez, Senior U.S. District 

Judge, issued an order stating: ``There being no evidence that 

designation of critical habitat for the pygmy-owl and water umbel is 

not prudent, the Secretary shall, without further delay, decide whether 

or not to designate critical habitat for the pygmy-owl and water umbel 

based on the best scientific and commercial information available.''

    On November 25, 1998, in response to a motion by the Plaintiffs 

requesting clarification of the October 7, 1998, order, Judge Marquez 

further ordered ``that within 30 days of the date of this Order, the 

Secretary shall issue the

[[Page 37421]]

proposed rules for designating critical habitat for the pygmy-owl and 

water umbel * * * and that within 6 months of issuing the proposed 

rules, the Secretary shall issue final decisions regarding the 

designation of critical habitat for the pygmy-owl and water umbel.''

    On December 30, 1998, we proposed 295,775 ha (730,565 ac) as 

critical habitat in Arizona for the pygmy-owl (63 FR 71820). On April 

15, 1999, we released the draft economic analysis on proposed critical 

habitat and reopened the public comment period for 30 days (64 FR 


    The processing of the December 30, 1998, proposed rule and this 

final rule does not conform with our Listing Priority Guidance for 

Fiscal Year 1998 and 1999 published on May 8, 1998 (63 FR 25502). The 

guidance clarifies the order in which we will process rulemakings 

giving highest priority (Tier 1) to processing emergency rules to add 

species to the Lists of Endangered and Threatened Wildlife and Plants; 

second priority (Tier 2) to processing final determinations on 

proposals to add species to the lists, processing new listing 

proposals, processing administrative findings on petitions (to add 

species to the lists, delist species, or reclassify listed species), 

and processing a limited number of proposed and final rules to delist 

or reclassify species; and third priority (Tier 3) to processing 

proposed and final rules designating critical habitat. Our Southwest 

Region is currently working on Tier 2 actions; however, we are 

undertaking this Tier 3 action in order to comply with the above-

mentioned court order.

Habitat Characteristics

    According to early surveys referenced in the literature, the pygmy-

owl, prior to the mid-1900s, was ``not uncommon,'' ``of common 

occurrence,'' and a ``fairly numerous'' resident of lowland central and 

southern Arizona in cottonwood forests, mesquite-cottonwood woodlands, 

and mesquite bosques along the Gila, Salt, Verde, San Pedro, and Santa 

Cruz rivers and various tributaries (Breninger 1898 in Bent 1938, 

Gilman 1909, Swarth 1914). Bendire (1888) noted that he had taken 

``several'' along Rillito Creek near Fort Lowell, in the vicinity of 

present-day Tucson, Arizona. Records indicate that pygmy-owls were 

initially more common in xeroriparian habitats (very dense thickets 

bordering dry desert washes) than in more open, desert uplands (Monson 

and Phillips 1981, Johnson and Haight 1985, Johnson-Duncan et al. 1988, 

Millsap and Johnson 1988, Davis and Russell 1990). The pygmy-owl was 

also noted to occur at isolated desert oases supporting small pockets 

of riparian and xeroriparian vegetation (Howell 1916, Phillips et al. 


    The historical use of Sonoran desertscrub habitats by pygmy-owls is 

not as clear. A disproportionately low number of historical records 

from desertscrub habitats may be due to the focus of early collection 

efforts along rivers where humans tended to concentrate, while the 

upland areas received less survey. Historical records of pygmy-owls do 

exist for Sonoran desertscrub in areas such as the Santa Catalina 

foothills and in ``groves of giant cactus'' near New River, north of 

present-day Phoenix. Kimball (1921) reported one pygmy-owl in a 

mesquite tree in the foothills of the Santa Catalina Mountains. Fisher 

(1893) took 2 pygmy-owl specimens near New River, and observed 

``several others'' in mesquite and large cacti.

    The northernmost historical record for the pygmy-owl is from New 

River, Arizona, approximately 56 kilometers (35 miles) north of 

Phoenix, where Fisher (1893) reported the pygmy-owl to be ``quite 

common'' in thickets of intermixed mesquite and saguaro cactus. Four 

eggs were collected in Phoenix, Maricopa County by G.F. Breninger on 

May 18, 1898, and R.D. Lusk collected five eggs at Cave Creek on April 

12, 1895. Pygmy-owls were also detected in central Arizona at the Blue 

Point Cottonwoods area, at the confluence of the Salt and Verde rivers, 

in 1897, 1949, 1951, 1964, and 1971 (AGFD unpubl. data, Phillips et al. 

1964, Millsap and Johnson 1988). Additionally, pygmy-owls were detected 

at Dudleyville on the San Pedro River as recently as 1985 and 1986 

(AGFD unpubl. data, Hunter 1988).

    The easternmost record for the pygmy-owl is from 1985 at the 

confluence of Bonita Creek and the Gila River (Hunter 1988). Other 

records from this eastern portion of the pygmy-owl's range include a 

1876 record from Camp Goodwin (current day Geronimo) on the Gila River 

(Aiken 1937), and a 1978 record from Gillard Hot Springs, also on the 

Gila River (Hunter 1988). Pygmy-owls have been found as far west as the 

Cabeza Prieta Tanks in 1955 (Monson 1998).

    Over the past several decades, pygmy-owls have been primarily found 

in Sonoran desertscrub communities in southern and southwestern Arizona 

consisting of palo verde, ironwood, mesquite, acacia, bursage, and 

columnar cacti (Phillips et al. 1964, Davis and Russell 1984 and 1990, 

Monson and Phillips 1981, Johnson and Haight 1985, Johnsgard 1988). 

Recently pygmy-owls have also been found in wooded drainages within 

semidesert grasslands in southern Arizona (unpubl. data). These sites 

are closely associated with xeroriparian habitats.

    Historically, pygmy-owls were associated with riparian woodlands in 

central and southern Arizona. Plants present in these riparian 

communities include cottonwood, willow (Salix spp.), ash (Fraxinus 

velutina), and hackberry (Celtis spp.). These trees are suitable for 

cavity nesting, while the density of mid- and lower-story vegetation 

likely provides necessary protection from predators and an abundance of 

prey. Mesquite bosque communities are dominated by mesquite trees, and 

are described as mesquite forests due to the density and large size of 

the trees. This habitat type provides for all of the necessary habitat 

components of the pygmy-owl.

    The Arizona upland subdivision of the Sonoran Desert provides an 

over-story of mature saguaros which are suitable for cavity nesting, as 

well as large mesquites and other trees which may be used for nesting, 

as well as perch and cover sites. Saguaro cavities are also used for 

roosting, perching, and caching food (Scott Richardson, Arizona Game 

and Fish Department, pers. comm. 1998). The mid- and lower-stories are 

comprised of a variety of mesquite, palo verde, ironwood, acacia, 

graythorn (Ziayphus obtusifola), bursage, cholla (Opuntia spp.), 

prickly pear (Opuntia spp.), and annual and perennial grass species. As 

in riparian habitat, the larger trees provide perches for foraging and 

protection from predators. Adequate vegetation in mid- and lower-

stories appears to be important, and likely provides protection from 

predators and a higher density of prey items including lizards, small 

birds and mammals, and insects.

    In central and southern Arizona, the pygmy-owl's primary habitats 

are riparian deciduous forests and woodlands, mesquite bosques, Sonoran 

desertscrub, and semidesert and Sonoran savanna grasslands with 

drainages lined with mesquite; although most recent observations have 

occurred primarily in Sonoran desertscrub associations of palo verde, 

bursage, ironwood, mesquite, acacia, and giant cacti such as saguaro 

and organ pipe (Gilman 1909, Bent 1938, van Rossem 1945, Phillips et 

al. 1964, Monson and Phillips 1981, Johnson-Duncan et al. 1988, Millsap 

and Johnson 1988, Aaron Flesch pers. comm. 1999). Farther south in 

northwestern Mexico, pygmy-owls occur in Sonoran desertscrub, Sinaloan 

thornscrub, and Sinaloan deciduous forest as well as riverbottom 


[[Page 37422]]

cactus forests, and thornforest (Enriquez-Rocha et al. 1993).

    Pygmy-owls at Organ Pipe Cactus National Monument have been 

detected primarily in relatively dense, lush Arizona uplands 

desertscrub associations on bajadas. Visually dominant plants at the 

pygmy-owl sites include saguaros, organ pipe cactus, ironwood, 

triangle-leaf bursage, foothill paloverde (C. Microphyllum), mesquite, 

whitethorn and catclaw acacia (Acacia constricta and A. greggii), 

numerous cholla, prickly pear cacti, ocotillo (Fouquieria splendens), 

various Lycium spp., and creosotebush (Larrea tridentata) (Smith 1996). 

In addition to the dense bajada desertscrub habitat described above, 

pygmy-owls have been documented in several large xeroriparian habitats 

in lower bajada or valley floor areas that have dense saguaro stands; 

however, some sites have much less dense adjacent upland areas 

dominated chiefly by creosotebush. Xeroriparian habitat at these sites 

consist of mesquites, foothill and blue paloverde (Cercidium 

microphyllum and C. flordum), desert willow (chilopsis lineraris), 

catclaw acacia, ironwood, and soapberry (Sapindus saponaria) (Smith 


Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 

specific areas within the geographic area occupied by a species, at the 

time it is listed in accordance with the Act, on which are found those 

physical or biological features (I) essential to the conservation of 

the species and (II) that may require special management consideration 

or protection and; (ii) specific areas outside the geographic area 

occupied by a species at the time it is listed, upon determination that 

such areas are essential for the conservation of the species. 

``Conservation'' means the use of all methods and procedures that are 

necessary to bring an endangered species or a threatened species to the 

point at which listing under the Act is no longer necessary.

    Section 4(b)(2) of the Act requires that we base critical habitat 

proposals upon the best scientific and commercial data available, after 

taking into consideration the economic impact, and any other relevant 

impact, of specifying any particular area as critical habitat. We may 

exclude areas from critical habitat designation when the benefits of 

exclusion outweigh the benefits of including the areas within critical 

habitat, provided the exclusion will not result in the extinction of 

the species (section 4(b)(2) of the Act).

    Designation of critical habitat can help focus conservation 

activities for a listed species by identifying areas that contain the 

physical and biological features that are essential for the 

conservation of that species. Designation of critical habitat alerts 

the public as well as land-managing agencies to the importance of these 


    Critical habitat also identifies areas that may require special 

management considerations or protection, and may provide protection to 

areas where significant threats to the species have been identified. 

Critical habitat receives protection from the prohibition against 

destruction or adverse modification through required consultation under 

section 7 of the Act with regard to actions carried out, funded, or 

authorized by a Federal agency. Section 7 also requires conferences on 

Federal actions that are likely to result in the adverse modification 

or destruction of proposed critical habitat. Aside from the protection 

that may be provided under section 7, the Act does not provide other 

forms of protection to lands designated as critical habitat.

    Section 7(a)(2) of the Act requires Federal agencies to consult 

with us to ensure that any action authorized, funded, or carried out is 

not likely to jeopardize the continued existence of a threatened or 

endangered species, or result in the destruction or adverse 

modification of critical habitat. ``Jeopardize the continued 

existence'' (of a species) is defined as an appreciable reduction in 

the likelihood of survival and recovery of a listed species. 

``Destruction or adverse modification'' (of critical habitat) is 

defined as a direct or indirect alteration that appreciably diminishes 

the value of critical habitat for the survival and recovery of the 

listed species for which critical habitat was designated. Thus, the 

definitions of ``jeopardy'' to the species and ``adverse modification'' 

of critical habitat are nearly identical (50 CFR Sec. 402.02).

    Designating critical habitat does not, in itself, lead to recovery 

of a listed species. Designation does not create a management plan, 

establish numerical population goals, prescribe specific management 

actions (inside or outside of critical habitat), or directly affect 

areas not designated as critical habitat. Specific management 

recommendations for critical habitat are most appropriately addressed 

in recovery plans and management plans, and through section 7 


    Critical habitat identifies specific areas that are essential to 

the conservation of a listed species and that may require special 

management considerations or protection. Areas that do not currently 

contain the habitat components necessary for the primary biological 

needs of a species but are likely to develop them in the future may be 

essential to the conservation of the species and may be designated as 

critical habitat.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 

50 CFR 424.12, in determining which areas to propose as critical 

habitat, we consider those physical and biological features that are 

essential to the conservation of the species and that may require 

special management considerations or protection. These include, but are 

not limited to, the following:

    Space for individual and population growth, and for normal 


    Food, water, air, light, minerals or other nutritional or 

physiological requirements;

    Cover or shelter;

    Sites for breeding, reproduction, or rearing of offspring, 

germination, or seed dispersal; and

    Habitats that are protected from disturbance or are representative 

of the historic geographical and ecological distributions of a species.

    The primary constituent elements for the pygmy-owl are those 

habitat components that are essential for the primary biological needs 

of foraging, nesting, rearing of young, roosting, sheltering, and 

dispersal, or the capacity to develop those habitat components. The 

primary constituent elements are found in areas that support or have 

the potential to support Sonoran riparian deciduous woodlands, Sonoran 

riparian scrubland, xeroriparian forests, tree-lined drainages in 

semidesert and Sonoran savanna grasslands, and the Arizona upland 

subdivision of Sonoran desertscrub (Brown 1994). Within these biotic 

communities, specific plant associations that are essential to the 

primary biological needs of the pygmy-owl include, but are not limited 

to, the following--cottonwood, willow, ash, mesquite, palo verde, 

ironwood, hackberry, saguaro cactus, and/or organ pipe cactus. 

Specifically, larger diameter trees and cacti provide not only nesting 

substrate, but also roosting, perching, foraging, and dispersal 

habitat, while smaller trees and shrubs provide for the same functions 

except nesting.

    In river floodplains, the presence of surface or subsurface water 

is important in maintaining pygmy-owl habitat. Riverine riparian 

woodlands and thickets are dependent on availability of groundwater at 

or near the surface

[[Page 37423]]

(Brown 1994). Surface or subsurface moisture may also be important in 

maintaining various prey species.


    In developing this final rule, we formed an interconnected system 

of suitable and potential habitat areas extending from the Mexican 

border through the northernmost recent pygmy-owl occurrence east of 

Phoenix. Areas designated as critical habitat meet the definition of 

critical habitat under section 3 of the Act in that they are within the 

geographical areas occupied by the species, are essential to the 

conservation of the species, and are in need of special management 

considerations or protection.

    In an effort to map areas essential to the conservation of the 

species, we used data on known pygmy-owl locations to initially 

identify important areas. We then connected these areas based on the 

topographic and vegetative features believed most likely to support 

resident pygmy-owls and/or facilitate movement of birds between known 

habitat areas. Facilitating movement of birds between habitat areas is 

important for dispersal and gene flow (Beier and Noss 1998). In 

selecting areas, we avoided private lands to the extent possible if 

State and Federal lands were present that could meet the conservation 

needs of the species. However, we are designating critical habitat in 

some largely privately owned areas, such as the area northwest of 

Tucson which supports the greatest known concentration of pygmy-owls in 


    In selecting areas of critical habitat, we made an effort to avoid 

developed areas such as towns, agricultural lands, and other lands 

unlikely to contribute to pygmy-owl conservation. Given the short 

period of time in which we were required to complete this final rule, 

we were unable to map critical habitat in sufficient detail to exclude 

all such areas. However, within the delineated critical habitat 

boundaries, only lands containing, or are likely to develop, those 

habitat components that are essential for the primary biological needs 

of the pygmy-owl are considered critical habitat. Existing features and 

structures within this area, such as buildings, roads, aqueducts, 

railroads, and other features, do not contain, and are not likely to 

develop, those habitat components and are not considered critical 


    In selecting areas as critical habitat, we attempted to exclude 

areas believed to be adequately protected, or where current management 

is compatible with pygmy-owls and is likely to remain so into the 

future. We excluded National Park lands (Organ Pipe Cactus National 

Monument and Saguaro National Park) and National Wildlife Refuges 

(Cabeza Prieta and Buenos Aires National Wildlife refuges). We also 

excluded non-Federal lands covered by a legally operative incidental 

take permit for pygmy-owls issued under section 10(a)(1)(B) of the Act. 

However, we did not exclude areas currently managed in a manner 

compatible with pygmy-owls where such management may not be assured in 

the future (e.g., county and State parks).

    In addition, lands of the Tohono O'odham Indian Nation are not 

included in this final rule. We are aware that pygmy-owls and pygmy-owl 

habitat likely exist on the Nation, and we believe these lands are 

important to the species' continued existence in Arizona. However, the 

short amount of time given by the court to designate critical habitat 

precluded us from adequately coordinating with the Nation to obtain 

pygmy-owl location and habitat information. In addition, we were unable 

to assess whether current or future Tribal management is likely to 

maintain pygmy-owls into the future, although the probable existence of 

both pygmy-owls and pygmy-owl habitat led us to believe that current 

management may be compatible with the species. As explained in the 

``Summary of Changes from the Proposed Rule'' section of this final 

rule, Tribal grazing allotments have also been excluded.

    We did not designate all pygmy-owl historical or potential habitat 

as critical habitat. We only designated those areas that we believe are 

essential for the conservation of the pygmy-owl and in need of special 

management or protection.

    In summary, the critical habitat areas described below, and 

protected areas either known or suspected to contain some of the 

primary constituent elements but not designated as critical habitat 

(e.g., National Park land, National Wildlife Refuge lands, etc.), 

constitute our best assessment of areas needed for the species' 

conservation. Also, we have appointed a Cactus Ferruginous Pygmy-owl 

Recovery Team that will develop a recovery plan for the species. The 

experts on this team will conduct a far more thorough analysis than we 

were able to conduct in the short amount of time allowed by the Court 

Order. Upon the team's completion of a recovery plan, we will evaluate 

the plan's recommendations and reexamine areas designated as critical 


Critical Habitat Designation

    In determining areas that are essential for the survival and 

recovery of the species, we used the best scientific information 

obtainable in the time allowed by the court. This information included 

habitat suitability and site-specific species information. To date, 

limited survey effort or research has been done to identify and define 

specific habitat needs of pygmy-owls in Arizona or to completely 

quantify their distribution. Only preliminary habitat assessment work 

has begun over small portions of the State, primarily on Bureau of Land 

Management (BLM) lands.

    We emphasized areas containing most of the verified pygmy-owl 

occurrences, especially recently identified locations. In order to 

maintain genetic and demographic interchange that will help maintain 

the viability of a regional metapopulation, we included corridor areas 

that allow movement between areas supporting pygmy-owls. These 

corridors or connecting areas, which have not been well surveyed 

connect recent sites and areas where suitable habitat remain. These 

corridors or connecting areas, while supporting some habitat suitable 

for nesting, were primarily included to facilitate dispersal and may 

contain more foraging, perching, and roosting habitat than actual 

breeding habitat. While habitat of similar quality occurs outside of 

these corridors, we anticipate that the use and importance of these 

corridors will increase over time if and when habitat outside of the 

corridors becomes unsuitable in the future.

    Table 1 shows the approximate acreage of critical habitat 

designation by county and land ownership. Critical habitat for the 

pygmy-owl includes river floodplains, Sonoran desertscrub, and 

semidesert grassland communities in Pima, Pinal, Maricopa, and Cochise 

counties, Arizona. To provide additional information, we have grouped 

areas designated into critical habitat units (see maps). A brief 

description of each unit and our reasons for designating those areas as 

critical habitat are presented below.

[[Page 37424]]

                   Table 1.--Approximate Critical Habitat Acreage by County and Land Ownership

[Note: acreage estimates are derived from Arizona Land Resource Information System data based on the cited legal




            Ownership            ----------------------------------------------------------------      Total

                                       Pima           Cochise          Pinal         Maricopa


FS..............................  ..............  ..............           5,065          33,323          38,388

BLM.............................          21,913  ..............          69,579  ..............          91,492

STATE...........................         158,974           2,371         273,541  ..............         434,886

PRIVATE.........................          61,830           2,461          71,634              68         135,993

OTHER...........................          18,166  ..............          12,787  ..............          30,953


    TOTAL.......................         260,883           4,832         432,606          33,391         731,712


Unit 1

    This unit lies between Buenos Aires National Wildlife Refuge and 

the Tohono O'odham Indian Nation, consisting of primarily State Trust 

lands, with some dispersed private ownership. This area contains 

semidesert and Sonoran savanna grasslands with a series of xeroriparian 

washes extending from the Baboquivari Mountains to Altar and Brawley 

washes. Uplands primarily consist of grasslands with dispersed mesquite 

trees, and a very few isolated saguaros in some areas, mostly occurring 

at the extreme north end of the unit. Dominant tree species in riparian 

areas include mesquite, ash, and hackberry.

    This unit is located in the Altar Valley, which recently has had 

several pygmy-owls documented. Not until 1998 had systematic surveys in 

this unit and adjacent areas been initiated; as a result, at least nine 

new pygmy-owl sites have been found (Harris Environmental Group, Inc. 

1998; AGFD unpubl. data; Aaron Flesch, pygmy-owl surveyor, pers. comm. 

1999). These new sites are located in riparian and xeroriparian 

habitats and wooded drainages within semidesert grassland and Sonoran 

savanna grassland communities. Since the turn of the century, many 

areas that were historical semidesert and Sonoran savanna grasslands in 

the Altar Valley have developed into habitats similar to Sonoran 

desertscrub (Brown 1994). It is unclear at this time what role this 

transition has played in the distribution of pygmy-owls in the region.

    Habitat in Unit 1 is suitable for nesting and dispersal habitat for 

pygmy-owls; however, nesting opportunities are generally greater in the 

washes because of a higher incidence of large diameter trees that may 

provide cavities for nesting. This unit is important for conservation 

of the species because it contains several pygmy-owl sites and it is 

close to other recent or currently active sites on the nearby refuge. 

It also provides opportunities for demographic and genetic interchange 

between pygmy-owls in Mexico and the United States as well as expansion 

of populations for recovery. Critical habitat in this area, together 

with protected lands on the refuges, National Monument, and habitat on 

the Nation, constitutes a large block of pygmy-owl habitat.

Unit 2

    This unit connects habitat on the Tohono O'odham Indian Nation to 

habitat in Saguaro National Park West and Tucson Mountain County Park. 

Ownership in this area is primarily BLM, State Trust, Bureau of 

Reclamation, Pima County, and some private lands. The area consists of 

Sonoran desertscrub, mesquite bosques interspersed by washes, and some 

retired agricultural lands. This east-west habitat corridor, together 

with the ``Garcia Strip'' of the Nation, includes suitable habitat for 

occupancy, movement, and genetic interchange of pygmy-owls between the 

Nation and the western Tucson region.

Unit 3

    This narrow unit connects suitable habitat in Unit 2 and Saguaro 

National Park west to Unit 4, which has the highest known concentration 

of pygmy-owls in Arizona. The land ownership in this area is mostly 

private. The area consists of Sonoran desertscrub, mesquite bosques 

interspersed by washes, and some retired agricultural lands. This area 

includes a recent pygmy-owl site west of Interstate 10 and provides a 

connection to habitat in the northwest Tucson region. Because of 

existing and past land management practices and development, this area 

contains the narrowest habitat linkage among other areas of critical 


    Few options currently exist for movement of pygmy-owls in this 

portion of their known range based on our limited knowledge of their 

movement among areas at this time (Scott Richardson, pers. comm. 1998). 

The pygmy-owl's flight pattern typically consists of a series of short, 

direct flights, perching in trees or shrubs usually less than 100 m 

(328 ft) apart (Glenn Proudfoot, pers. comm, 1999 and Scott Richardson, 

pers. comm. 1999).

Unit 4

    This unit is located in the northwest portion of Tucson north of 

Interstate 10 and contains the highest known concentration of pygmy-

owls in Arizona. This unit contains mostly private and County lands. 

The area includes known locations of pygmy-owls and adjacent habitats 

and is bounded by La Cholla Boulevard to the east, Cortaro Road to the 

south, Interstate 10 to the west, and the Tortolita Mountains to the 

north. In the immediate Tucson area, and to the south of Unit 4, very 

little suitable habitat remains due to residential, commercial, and 

agricultural development. Historically, these upland and riparian areas 

may have supported pygmy-owls. The area of critical habitat contains 

stands of ironwood, acacia, and saguaro, mesquite bosques, and several 

washes, and includes the most contiguous and highest quality pygmy-owl 

habitat based on current information (Scott Richardson, pers. comm. 

1998; Wilcox et al. 1999).

Units 5a and 5b

    Unit 5 includes 2 habitat corridors that connect habitat in Unit 4 

to riparian habitats to the north on the Gila River (5a) and to the 

east on San Pedro River (5b). Land ownership is mostly BLM, State 

Trust, and private. This area also includes recent pygmy-owl 

occurrences in southern Pinal County, although only a limited number of 

surveys have been conducted to determine if pygmy-owls are present in 

much of this area. Relatively intact riparian woodland habitats still 

remain along much of these portions of the Gila and San Pedro rivers. 

These units contain historical pygmy-owl locations and/or areas thought 

to contain suitable upland

[[Page 37425]]

habitat (Dave Krueper, BLM, pers. comm. 1998).

    Limited habitat assessment has been completed within these 

corridors and few historical or current pygmy-owl occurrences have been 

documented. However, the BLM has conducted some habitat assessments on 

their lands in Unit 5a and rated the habitat suitability for pygmy-owls 

as moderate to high (Dave Krueper, pers. comm. 1998). We included these 

two corridors primarily because they constitute areas for dispersal, 

and also for nesting where nesting habitat is present. Upon field 

review of habitats present in both of these units, we believe they 

could facilitate movement through these areas, which would act as 

dispersal corridors. In addition to dispersal habitat, nesting habitat 

is also present in uplands with saguaros and in washes where large 

diameter trees are present. The majority of the nesting habitat in this 

region is in Unit 5a, although some large diameter trees are also 

located in some of the washes in Unit 5b, and may contain some 

potential nesting cavities. Where possible, we avoided the higher 

elevation areas, which likely provide lower quality habitat.

    We are only beginning to understand the importance of upland 

habitat to the pygmy-owl. Although historical observations of pygmy-

owls were almost exclusively in riparian woodlands (Breninger 1898 in 

Bent 1938), almost all of the recent records of pygmy-owls have been in 

Sonoran desertscrub, and mesquite bosque upland areas, semidesert 

grasslands, and washes. Based on the current information, we believe 

these two corridors (5a and 5b) provide a high potential for supporting 

resident and/or dispersing pygmy-owls through this area. Without these 

habitat linkages, demographic and genetic connectivity and exchange may 

not be maintained between known populations in the greater Tucson 

region and riparian habitats in the Gila and San Pedro rivers.

Unit 6

    This unit includes the riparian woodlands of the middle and lower 

San Pedro River and a portion of the Gila River. There were four pygmy-

owls documented in the mid-1980s from lower San Pedro River woodlands. 

Similar riparian woodlands and associated upland habitats with saguaro 

cactus are present along the San Pedro upstream (south) to 

approximately the town of Cascabel.

    The San Pedro River riparian corridor connects to the Gila River to 

the north. This section of the Gila River also contains riparian 

woodland habitats, which we believe are suitable for pygmy-owls (Dr. 

Roy Johnson, National Park Service (Retired) pers. comm. 1998). We are 

designating these areas as critical habitat because of the importance, 

based on the early records of naturalists during the late 1800s and 

early 1900s, of riparian woodland habitats, the presence of suitable 

habitat, and the linkage these areas provide to other historical 

locations and suitable habitat to the north.

Unit 7

    This unit links riparian habitat on the Gila River to other upland 

habitats and ultimately to the remaining woodland habitat along the 

Salt River where pygmy-owls were collected in the 1940s and 1950s and 

where this species was recorded in the early 1970s. Land ownership in 

this area is primarily BLM, State Trust, Forest Service, and some 

dispersed private. Although recent surveys have not located pygmy-owls 

in riparian areas in this unit, riparian woodland habitats remain along 

portions of the Salt River in this area (Roy Johnson pers. comm. 1998), 

and we cannot rule out pygmy-owl use of the area because pygmy-owls may 

use areas only periodically and may not be detected. In delineating 

critical habitat in this unit, we considered elevation, topographic 

features, and existing developed areas and determined that a habitat 

linkage that includes Sonoran upland desertscrub will provide 

connectivity and suitable habitats between riparian woodland habitats 

along the Gila and Salt rivers.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 

threatened under the Act include recognition, recovery actions, 

requirements for Federal protection, and prohibitions against certain 

practices. Recognition through listing encourages and results in 

conservation actions by Federal, State, and private agencies, groups, 

and individuals. The Act provides for possible land acquisition and 

cooperation with the States and requires that recovery actions be 

carried out for all listed species. The protection required of Federal 

agencies and the prohibitions against certain activities involving 

listed species are discussed, in part, below.

    Section 7(a) of the Act requires Federal agencies to evaluate their 

actions with respect to any species that is proposed or listed as 

endangered or threatened and with respect to its critical habitat, if 

any is designated or proposed. Regulations implementing this 

interagency cooperation provision of the Act are codified at 50 CFR 

Sec. 402. Section 7(a)(2) requires Federal agencies to ensure that 

activities they authorize, fund, or carry out are not likely to 

jeopardize the continued existence of such a species or to destroy or 

adversely modify its critical habitat. If a Federal action may affect a 

listed species or its critical habitat, the responsible Federal agency 

must enter into consultation with us.

    Section 7(a)(4) of the Act and regulations at 50 CFR Sec. 402.10 

require Federal agencies to confer with us on any action that is likely 

to result in destruction or adverse modification of proposed critical 

habitat. Conferencing on proposed critical habitat for the pygmy-owl 

was not requested by any Federal agency.

    Activities on Federal lands that may affect the pygmy-owl or its 

critical habitat will require section 7 consultation. Activities on 

private or State lands requiring a permit from a Federal agency, such 

as a permit from the U.S. Army Corps of Engineers under section 404 of 

the Clean Water Act, or a section 402 permit from the Environmental 

Protection Agency, will be subject to the section 7 consultation 

process. Federal actions not affecting the species, as well as actions 

on non-Federal lands that are not federally funded or permitted will 

not require section 7 consultation.

    Section 4(b)(8) of the Act requires us to describe in any proposed 

or final regulation that designates critical habitat those activities 

involving a Federal action that may destroy or adversely modify such 

habitat or that may be affected by such designation. Activities that 

may destroy or adversely modify critical habitat include those that 

alter the primary constituent elements to the extent that the value of 

critical habitat for both the survival and recovery of the pygmy-owl is 

appreciably diminished. We note that such activities may also 

jeopardize the continued existence of the species. Such activities may 

include, but are not limited to:

    (1) Removing, thinning, or destroying vegetation, whether by 

burning or mechanical, chemical, or other means (e.g., woodcutting, 

bulldozing, overgrazing, construction, road building, mining, herbicide 

application, etc.);

    (2) Water diversion or impoundment, groundwater pumping, or other 

activity that alters water quality or quantity to an extent that 

riparian vegetation is significantly affected; and

    (3) Recreational activities that appreciably degrade vegetation.

[[Page 37426]]

    If you have questions regarding whether specific activities will 

constitute adverse modification of critical habitat, contact the Field 

Supervisor, Arizona Ecological Services Field Office (see ADDRESSES 

section). Requests for copies of the regulations on listed wildlife and 

inquiries about prohibitions and permits may be addressed to the U.S. 

Fish and Wildlife Service, Branch of Endangered Species/Permits, P.O. 

Box 1306, Albuquerque, New Mexico 87103 (telephone 505-248-6920, 

facsimile 505-248-6922).

    Designation of critical habitat could affect Federal agency 

activities including, but not limited to:

    (1) Regulation of activities affecting waters of the United States 

by the Army Corps of Engineers under section 404 of the Clean Water 


    (2) Regulation of activities affecting point source pollution 

discharges into waters of the United States by the Environmental 

Protection Agency under section 402 of the Clean Water Act;

    (3) Regulation of water flows, damming, diversion, and 

channelization by Federal agencies; and

    (4) Regulation of grazing, mining, or recreation by the BLM or 

Forest Service.

Summary of Comments and Recommendations

    In the December 30, 1998, proposed rule, all interested parties 

were requested to submit comments or information that might bear on the 

designation of critical habitat for the pygmy-owl (63 FR 71820). The 

first comment period closed March 1, 1999. The comment period was 

reopened from April 15 to May 15, 1999, to once again solicit comments 

on the proposed rule and to accept comments on the draft economic 

analysis (72 FR 18596). Comments received from March 2 to April 14, 

1999, were entered into the administrative record during the second 

comment period.

    All appropriate State and Federal agencies, county governments, 

scientific organizations, and other interested parties were contacted 

and invited to comment. In addition, newspaper notices inviting public 

comment were published in the following newspapers in Arizona: Arizona 

Republic, Tucson Citizen, Arizona Daily Star, Sierra Vista Herald, 

Green Valley News and Sun, The Bulletin, The Tombstone Tumbleweed, and 

Nogales International. The inclusive dates of these publications were 

January 4 to 12, 1999, for the initial comment period; January 26 to 

February 4, 1999, to advertise the public hearings; and April 21 to 29, 

1999, for the second comment period.

    We held three public hearings on the proposed rule, including at 

Coolidge (February 10, 1999), Sierra Vista (February 11, 1999), and 

Tucson, Arizona (February 12, 1999). The hearings were also held to 

solicit comments on the proposed rule to designate critical habitat for 

the Huachuca water umbel, Lilaeopsis Schaffneriana var. recurva (63 FR 

71838). A notice of hearings and locations was published in the Federal 

Register on January 26, 1999 (64 FR 3923). A total of 89 people 

attended the public hearings, including 10 in Coolidge, 28 in Sierra 

Vista, and 51 in Tucson. Transcripts of these hearings are available 

for inspection (see ADDRESSES section).

    We requested four Arizona ornithologists, who are familiar with 

this species and were not on the appointed Cactus Ferruginous Pygmy-owl 

Recovery Team, to peer review the proposed critical habitat 

designation. However, only one of the peer reviewers submitted 

comments. He concluded that ``sound scientific information about 

habitat requirements and movements is the most essential matter related 

to the conservation of the CFPO (pygmy-owl).'' Further, he summarized, 

``I oppose this designation because it is not based on adequate 

scientific data, and also because it detracts from the path of 

gathering good data by wasting public resources on needless, time-

consuming actions related to bureaucratic process, not species 


    We received a total of 21 oral and 268 written comments during the 

2 comment periods. Of those oral comments, 4 supported critical habitat 

designation, 16 were opposed to designation, and 1 provided additional 

information but did not support or oppose the proposal. Of the written 

comments, 59 supported designation, 182 were opposed to it, and 21 

provided additional information only, or were nonsubstantive or not 

relevant to the proposed designation. In total, oral and written 

comments were received from 10 Federal agencies, 7 State agencies, 9 

local governments, and 242 private organizations, companies, or 


    All comments received were reviewed for substantive issues and new 

data regarding critical habitat and the pygmy-owl. Comments of a 

similar nature are grouped into 9 issues relating specifically to 

critical habitat. These are addressed in the following summary.

    Issue 1: Biological Justification and Primary Constituent Elements 

1a) Comment: How could the Service determine areas essential for 

conservation of the species since little is known about their habitat 

needs? Designation of critical habitat should be delayed until it is 

determinable and better information becomes available on the species. 

Stale, inaccurate data were used in the proposal.

    Service Response: Under sections 4(a)(3)(A) and 4(b)(6)(C) of the 

Act, critical habitat must, to the maximum extent prudent and 

determinable, be designated at the time of listing. If there is 

insufficient information to perform the required impact analysis of 

designation, or the biological needs of the species are not 

sufficiently known to permit identification of an area as critical 

habitat, it may be delayed up to 1 year. On December 12, 1994, we 

published a proposed rule to list the pygmy-owl as endangered with 

critical habitat (59 FR 63975). On March 19, 1997, we published a final 

rule listing this species as endangered. In that final rule, we 

determined that designaton of critical habitat was not prudent, because 

of the potential harm to the species from publishing precise location 

maps as required for critical habitat designation (62 FR 10730). Given 

the amount of time since the pygmy-owl was listed as endangered (over 

20 months), a ``not determinable finding'' is no longer possible. 

Because of the October 7, 1998, court order, we must now designate 

critical habitat using the best information currently available.

    Although much additional biological information for this species is 

needed, some of its biological needs are known. In making this 

designation, we reviewed all pygmy-owl records within the historical 

range of this subspecies in Arizona. To the extent possible, given the 

short time available, we utilized the most current scientific 

literature; vegetation descriptions; information from outside sources 

such as species experts, agencies, and others; and field reconnaissance 

of specific areas in developing this final rule.

    1(b) Comment: The Service, in partnership with counties and 

municipalities, needs to develop science-based surveys and studies to 

determine recovery efforts needed.

    Service Response: We agree that additional surveys and ecological 

studies are needed. We are currently working with Pima County in their 

efforts to conduct comprehensive studies within the County, that will 

serve as the foundation for their Habitat Conservation Plan, which is 

currently under development. We encourage others to complete surveys 

and life history studies on their lands to assist them in managing for 

pygmy-owls. We welcome new partnerships with any entity in order to 

conserve pygmy-owls.

[[Page 37427]]

    1(c) Comments: There is no biological justification or analysis to 

designate unoccupied areas or use a ``connect the dots approach'' in 

determining areas as critical habitat. Some areas in Units 1, 2, 5b, 6, 

and 7 are not connected by habitat and should not be included.

    Service Response: Much of the area designated as critical habitat 

has never been surveyed for pygmy-owls. Therefore, it is unknown if 

owls are currently present. We designated critical habitat in areas 

that include sites we believed were essential for the conservation of 

the species and those needing special management considerations. Pygmy-

owls may be present in those areas. We also believe areas between 

recent sightings play an important role and are essential to 

conservation of the species for the following reasons--(1) it is 

unknown if owls are in fact using these areas due to the lack of past 

survey effort; (2) areas of suitable or potentially suitable habitat 

located between areas of known owl occurrence are very important to 

allow pygmy-owls to colonize new areas; (3) they provide areas where 

pygmy-owls can disperse or facilitate movement between occupied areas 

for genetic interchange; and (4) they require special management 


    There are some areas within the critical habitat boundaries that, 

by definition of the primary constituent elements, are not critical 

habitat. We have provided additional habitat element descriptions where 

possible for each mapping unit to assist landowners and managers in 

identifying areas containing these elements or where these elements 

have the potential to develop on their lands. Refer to the description 

of each unit within this final rule.

    Much of southern Arizona contains areas that provide potentially 

suitable habitat that may support pygmy-owls. However, as directed in 

section 3(5)(A)(i and ii) of the Act, we have only designated those 

areas that we believe are essential to conservation of the species. 

Pygmy-owls may be present in some of those areas, but many areas have 

not yet been surveyed.

    (1d) Comment: How could the Service determine critical habitat when 

it doesn't know what viable populations are necessary to recover the 


    Service Response: A population viability analysis for this species 

has not been undertaken, however, we are required to designate critical 

habitat to the maximum extent prudent and determinable using existing 

information. Although population viability information will be useful 

in developing a recovery strategy for the species, it is not required 

to make this determination of critical habitat. A population viability 

analysis is unavailable for many species due to the lack of demographic 

information, habitat requirements, and other information required for 

an analysis. Studies to determine viable population levels for the 

pygmy-owl could not be conducted within the time frame given by the 

court and are not required by the Act for designation of critical 


    1(e) Comment: Critical habitat should not be designated until a 

recovery plan is completed.

    Service Response: Although having a recovery plan in place is 

extremely helpful in identifying areas as critical habitat, the Act 

does not require a plan be prepared prior to such designation. Section 

4(c) specifically requires that critical habitat be designated at the 

time a species is listed, or within 1 year if not determinable at 

listing. Once a recovery plan is finalized, we may revise the critical 

habitat described in this final rule if appropriate, to reflect the 

goals and recovery strategy of the recovery plan.

    1(f) Comments: Only riparian areas should be designated since 

Sonoran desertscrub is only marginal habitat for pygmy-owls in Arizona. 

The Service should stress riparian restoration in recovery efforts for 

the pygmy-owl.

    Service Response: At the time the pygmy-owl was listed, it was 

almost exclusively known from historical records to occur in riparian 

woodlands and mesquite bosques. Since these early records, all active 

sites have been located in Sonoran desertscrub, xeroriparian, or desert 

grassland habitats. Based on our current knowledge, both riparian and 

other habitat types appear to be important.

    1(g) Comments: The habitat assessment key should have been used to 

identify areas of critical habitat. Some areas that rated low using 

this key were designated critical habitat, such as in Units 1 and 5b. 

Why were these two units included since they are of low quality? Why 

was Unit 1 designated when there have never been owls present?

    Service Response: The BLM developed a habitat assessment key for 

its use to prioritize areas to survey that may be suitable for pygmy-

owls. Not enough information is currently known regarding range-wide 

habitat requirements to develop a key with specific criteria that would 

apply to all habitats. Habitats where pygmy-owls have been found in the 

greater Tucson area are vastly different from other areas of the State, 

such as Organ Pipe Cactus National Monument and the Altar Valley. The 

BLM methodology uses specific habitat evaluation criteria to assess 

distinct habitats found on their lands within specific regions of the 

State. The BLM believes, and we concur, that it would be inappropriate 

to use this methodology to identify areas of critical habitat and to 

evaluate other habitats throughout the State since many of these 

criteria do not apply to other regions. We are not aware of any 

completed habitat assessments using the BLM methodology within Units 1 

or 5b.

    When we originally proposed critical habitat in December, 1998, 

there was only one documented record of a pygmy-owl in Unit 1. Although 

very few surveys had been completed in this area previously, potential 

habitat was present and we believed this area was important to the 

species. Since then, intensive surveys have been initiated in this unit 

and the nearby refuge. As a result, nine pygmy-owl sites have been 

found (Harris Environmental Group 1998; Aaron Flesch, pers. comm. 1999; 

AGFD unpubl. data 1999). Therefore, we consider this unit essential for 

recovery of the species. Likewise, other areas we have designated have 

little survey data to date. Areas where pygmy-owls are not currently 

known to exist because of lack of or limited survey efforts may also 

have pygmy-owls. We encourage landowners and managers with suitable 

habitat described in this rule to conduct surveys for pygmy-owl. We 

agree that Unit 5b likely contains limited nesting habitat; however, 

the mesquite-lined washes in this unit provide, at a minimum, dispersal 

habitat for owls moving between Units 4 and 6.

    1(h) Comment: Critical habitat boundaries do not appear to reflect 

habitat; rather they follow squared-off, arbitrary lines.

    Service Response: We are required to describe critical habitat (50 

CFR Sec. 424.12(c)) with specific limits using reference points and 

lines as found on standard topographic maps of the area. Due to the 

time constraints imposed by the court, the absence of detailed 

vegetation maps, we followed roads, railroads, and section or township 

lines wherever possible to delineate the critical habitat boundaries. 

Some pygmy-owl unsuitable habitat areas may be included in these mapped 

areas. Under 50 CFR Sec. 424.12(d), when several habitat areas are 

located in proximity to one another, an inclusive area may be 

designated as critical habitat.

    (1i) Comments: Why are some areas that do not appear to have 

suitable pygmy-owl habitat or to contain any of the primary constituent 

elements included as critical habitat? Only those areas with these 

constituent elements

[[Page 37428]]

should be designated (15 USC Sec. 1532 (5)(A) and 50 CFR Sec. 424.12).

    Service Response: As previously stated in this document, due to 

time constraints, we were not able to eliminate areas within the 

critical habitat boundaries that do not contain, or do not have the 

reasonable likelihood of ever containing, the primary constituent 

elements necessary for the pygmy-owl. However, any areas that do not, 

and cannot, support these elements are, by definition, not considered 

to be critical habitat, even though they are within the identified 


    (1j) Comments: Areas with reduced value as pygmy-owl habitat should 

not be included. Commenters cited the following factors as to why their 

lands had little value as pygmy-owl habitat--lack of some primary 

constituent elements, ``low-quality'' habitat, nearby major roads, 

schools, or high-density housing, and lack of saguaros or ironwoods. 

Some areas may not be suitable because they are adjacent to planned 

developments such as future road-widening projects or housing 


    Service Response: We have documented the presence of pygmy-owls 

near developed lands, roads, and areas that possess some, but not all, 

of the primary constituent elements. Therefore, we are including areas 

near developed lands that contain at least some primary constituent 

elements as critical habitat because owls use these areas. We believe 

these areas also play an important role for pygmy-owls for some of 

their life history requirements such as foraging or dispersal. We can 

not exclude areas as critical habitat because of projected projects or 

proposed activities, unless the economic impact outweighs the benefit 

to the species (section 4(b)(2) of the Act). Although ironwoods are 

commonly found at sites in the northwest Tucson area (Wilcox et al. 

1999), numerous other historical and recent sites lack ironwoods. 

Therefore, we do not believe ironwoods are specifically a necessary 

component for pygmy-owls. Further research is needed to fully 

understand this species' habitat needs and life history requirements.

    (1k) Comment: You should not only designate currently occupied 

sites, but also sites with suitable or potential habitat that was 

previously occupied, and also dispersal habitat.

    Service Response: The Act (section 3(5)(C)) states that not all 

areas capable of being occupied by the species should be designated as 

critical habitat unless we determine that such designation is essential 

to the species' conservation. In determining what areas are critical 

habitat, we considered areas and constituent elements that are 

essential to the conservation of the species and that may require 

special protection or management considerations (50 CFR 

Sec. 424.12(b)). Thus, not all areas occupied or potentially occupied 

by a species are eligible for designation. Our rationale for not 

designating all occupied pygmy-owl sites as critical habitat are 

discussed in the section entitled ``Critical Habitat Designation.'' Due 

to time constraints and because of a lack of survey data to indicate 

documented pygmy-owl presence, we cannot assert that pygmy-owls are not 

present in a particular area designated as critical habitat. This 

critical habitat designation contains areas that may be important for 

pygmy-owl dispersals.

    (1l) Comments: There was no scientific basis for the constituent 

elements described in the proposed rule. The definition of constituent 

elements should be expanded to include dispersal habitat such as 

creosote bush and grasslands. The constituent elements described are 

vague (violating 50 CFR Sec. 424.12(c)) and are overly inclusive, and 

should include the required greater detail defining structure, species 

richness, and juxtaposition of riparian and xeroriparian areas with 

adjacent upland habitat types. Identified corridors are not based on 

known movement of owls, and appear to be sheer guesswork.

    Service Response: The primary constituent elements described in 

this final rule are elements for which we have evidence of use by 

pygmy-owls in Arizona. Smaller diameter trees and shrubs, though not 

suitable nesting structure, appear suitable for dispersal movements 

and/or support prey species for pygmy-owls (Proudfoot, pers. comm. 

1999). Pure stands of extensive grassland do not support primary 

constituent elements; however, grasslands with scattered mesquites or 

other trees or shrubs provide dispersal and foraging habitat and 

drainages within grasslands containing trees with cavities may also 

provide suitable nesting habitat. Information regarding movement of 

pygmy-owls gathered in Arizona and Texas was used to determine 

suitability of dispersal corridors.

    To date, pygmy-owl habitat studies have been limited to descriptive 

studies in the greater Tucson area. Habitat in this study area is 

vastly different from sites elsewhere in the State with historical and 

recent pygmy-owl sightings. In addition to this Tucson habitat study 

(Wilcox et al. 1999), we are aware of two additional habitat studies 

that are scheduled to begin in the summer of 1999, which will analyze 

habitats where other pygmy-owls are found in the State. These 

additional studies will examine habitats used by pygmy-owls in areas 

containing very different habitats compared to previous studies. Random 

sites will also be studied in the state to determine use versus 

availability. These studies will provide valuable information about the 

habitat needs of pygmy-owls and will be useful to us and others in 

meeting the conservation needs of the species.

    As noted earlier, pygmy-owls use a variety of habitats. We have 

described in the greatest detail possible in this final rule the 

constituent elements important to pygmy-owls known at this time. If new 

information later becomes available as a result of the above mentioned 

or other studies regarding the habitat needs of this species, we will 

then evaluate whether a revision of designated critical habitat is 

warranted. In addition, as new habitat information becomes available 

that can further refine habitat definitions and descriptions, it will 

be used in future section 7 consultations and recovery planning for the 


    Issue 2: Take of Private Property/Additional Burdens on Private 


    (2a) Comment: The designation of critical habitat would constitute 

``taking'' of private property rights; thus a takings implications 

assessment, as required by Executive Order 12630, must be conducted.

    Service Response: The designation of critical habitat has no effect 

on non-Federal actions taken on private land, even if the private land 

is within the mapped boundary of designated critical habitat. Critical 

habitat has possible effects on activities by private landowners only 

if the activity involves Federal funding, a Federal permit, or other 

Federal action. If such a Federal nexus exists, we will work with the 

landowner and the appropriate Federal agency to ensure that the 

landowner's project can be completed without jeopardizing the species 

or adversely modifying critical habitat.

    Executive Order 12630 requires that Federal actions that may affect 

the value or use of private property be accompanied by a takings 

implication assessment. As discussed in our response to Issue 9, 

(McKenney et al. 1999), the economic analysis found that designation of 

critical habitat would have no economic effect above that already 

imposed by listing. The primary effect of critical habitat designation 

on private property is to identify areas important for the conservation 

of the species. In addition, if a Federal action

[[Page 37429]]

occurs on those private lands, such as issuance of a Clean Water Act 

section 404 permit, the Federal action agency would be required to 

consult with us pursuant to section 7 of the Act if that action may 

affect the pygmy-owl or its critical habitat. In Arizona, all private 

landowners that have applied for a section 10 take permit to allow them 

incidental take of a federally listed species have been issued permits, 

and all projects that have completed the section 7 consultation process 

have gone forward.

    (2b) Comments: The designation of critical habitat would place an 

additional burden on landowners above and beyond what the listing of 

the species would require. The number of section 7 consultations will 

increase; large areas where no pygmy-owls are known to occur will now 

be subject to section 7 consultation. Many Federal agencies have been 

making a ``no effect'' call within unoccupied suitable habitat. Now, 

with critical habitat there will be ``may effect'' determinations, and 

section 7 consultation will be required if any of the constituent 

elements are present.

    Service Response: If a Federal agency funds, authorizes, or carries 

out an action that may affect either the pygmy-owl or its critical 

habitat, the Act requires that the agency consult with us under section 

7 of the Act. For a project to affect critical habitat, it must affect 

the habitat features important to the pygmy-owl, which are the primary 

constituent elements described in this final rule. Our view is and has 

been that any Federal action within the geographic area occupied by the 

species that affects these habitat features should be considered a 

situation that ``may affect'' the pygmy-owl and should undergo section 

7 consultation. This is true whether or not critical habitat is 

designated, even when the particular project site within the larger 

geographical area occupied by the species is not known to be currently 

occupied by an individual pygmy-owl. All areas designated as critical 

habitat are within the geographical area occupied by the species, so 

Federal actions affecting essential habitat features of the species 

should undergo consultation. Thus, the need to conduct section 7 

consultation should not be affected by critical habitat designation. As 

in the past, the action agency will continue to make the determination 

as to whether their project may affect a species even when the 

particular site is not known to be currently occupied by an individual 


    Issue 3: National Environmental Policy Act.

    Comment: The designation of critical habitat constitutes a major 

Federal action significantly affecting the quality of the human 

environment. An environmental impact statement (EIS) should be 


    Service Response: We have determined that Environmental Assessments 

(EAs) and EISs, as defined under the authority of the National 

Environmental Policy Act of 1969 (NEPA), need not be prepared in 

connection with regulations adopted pursuant to section 4(a) of the 

Act. We published a notice outlining our reasons for this determination 

in the Federal Register in October, 1983 (48 FR 49244).

    Issue 4: Lands with Habitat Conservation Permits to be Excluded 

from Critical Habitat.

    Comments: It is illegal and unscientific to withdraw critical 

habitat designation from land covered by an approved or future Habitat 

Conservation Plan (HCP) incidental take permit. Critical habitat 

protects land essential for conservation, which is a higher standard 

than a HCP permit which only assures that jeopardy would not occur. The 

HCP take permit has no public process analysis or scientific 

accountability. HCPs should maintain constituent elements. Regional 

HCPs are preferred to individual permits. Individual HCPs should not be 

approved until a regional HCP is completed in Pima County.

    Service Response: Before we issue a section 10 permit, we must 

determine that the HCP provides for the conservation of the species. As 

a part of the permit evaluation process, we must determine whether our 

action of issuing the section 10 permit is likely to jeopardize the 

continued existence of the species or result in adverse modification of 

critical habitat. Thus, when a HCP is approved through a section 10 

permit, we will have already determined that critical habitat would not 

be adversely modified. HCP permits for lands over 5 acres in size are 

required to go through the NEPA process that involves public 

participation and comment. Monitoring and adaptive management are 

important components of the HCP process to ensure that needed actions 

are taken and that actions can be modified, as needed, as new 

information is collected.

    We agree that maintaining the primary constituent elements is an 

important consideration in developing HCPs. In addition, we strongly 

support regional multiple-species HCPs such as the one currently under 

development by Pima County, and we encourage this broad-based approach 

to others within the region. Experience gained from development of 

similar plans indicates that because of their complexity, these plans 

typically take a year or more to complete. We encourage landowners and 

members of the public in the region to participate in this planning 

effort; however, we realize that it would be unrealistic for some to 

wait until the county's plan is finalized. We cannot preclude any 

applicant from pursuing an individual HCP pending the development of a 

regional plan.

    Issue 5: Section 7 Consultation and Section 9.

    (5a) Comments: How will the Service conduct section 7 consultations 

on land immediately adjacent to critical habitat; would additional 

buffers be required?

    Service Response: We address all direct, indirect, inter-related, 

and interdependent effects of projects under section 7 consultation, 

which could include effects to areas outside of the immediate project 

area (downstream effects, for example). However, if a project is 

adjacent to, but not within, critical habitat and has no direct or 

indirect effect on critical habitat, that would be acknowledged in the 

section 7 Biological Opinion, and only effects to the species would be 


    (5b) Comment: Section 9 does not fully protect habitat absent a 

critical habitat designation because critical habitat can include 

unoccupied habitat. There is a clear distinction between the 

``jeopardy'' and ``adverse modification of critical habitat'' 

prohibitions. In its final rule listing the pygmy-owl as endangered, 

the Service states that clearing of unoccupied habitat is not a section 

9 ``take.'' The courts have consistently held that for a party to 

assert that removal or disturbance of vegetation from an area will 

result in take of an endangered species, such a party must demonstrate 

that the species is present in the area or otherwise using it for 

essential behavioral functions. Where there is no owl, there is no 


    Service Response: We agree that section 9 does not protect 

unoccupied habitat, i.e., areas from which the pygmy-owl has been 

extirpated. However, as discussed in our response to comment 2(b) 

above, section 7 requires consultation on Federal actions that may 

affect a listed species or its critical habitat. An action agency may 

determine that a project may affect a species even when the particular 

site is not known to be currently occupied by an individual pygmy-owl. 

It is our view that actions affecting suitable pygmy-owl habitat within 

the known range of the pygmy-owl, whether or not that area has been 

designated as critical habitat and whether or not it is known to

[[Page 37430]]

currently support an individual, should undergo review under section 7.

    Issue 6: Designation by Specific Land Ownership.

    (6a) Comments: Designation of critical habitat is not necessary on 

non-Federal lands because vast tracts of Federal and Tribal lands are 

already protected. For instance, over 87% of Pima County is owned by 

the government; the Service should move the owls to those lands.

    Service Response: The Act defines critical habitat as those areas 

essential to the conservation of the species and that are in need of 

special management considerations or protection. We agree that Federal 

lands provide a significant amount of the habitat currently occupied by 

the pygmy-owl, and that those lands are essential to the species' 

conservation. However, much of the currently occupied habitat is on 

non-Federal land, especially in Pima County. As stated in the proposed 

rule, we tried to avoid designation on non-Federal lands except when 

those lands are, because of their location or the habitat they support, 

necessary to ensure pygmy-owl conservation. We do not believe that 

Federal and Tribal lands alone, are adequate to ensure the species' 


    (6b) Comments: Exemption of Federal lands such as National Parks 

and National Wildlife Refuges is illegal, violating 50 CFR Sec. 424.12, 

and draft guidance exhibit 2, pp 5, 11-12, which states that lands must 

be evaluated regardless of ownership. None of those lands have an owl 

plan, and there is no basis to claim that future management will be 

consistent with critical habitat protections. The Service does not have 

the statutory authority to exclude areas because it feels their current 

management is compatible with pygmy-owls, and the benefits from 

exclusion must be greater than that of inclusion.

    Service Response: In determining what areas are critical habitat, 

we consider physical and biological features that are essential to the 

conservation of the species and that may require special management 

considerations or protection (50 CFR Sec. 424.14(b)). Organ Pipe Cactus 

National Monument, Saguaro National Park, and Buenos Aries and Cabeza 

National Wildlife refuges provide important habitat for the pygmy-owl. 

These areas were excluded from designation not simply because of 

ownership, but because we believe these areas are managed in such a way 

that provides for natural values, including protection of threatened 

and endangered species. We believe that these specific areas are 

managed and likely will continue to be managed in a manner compatible 

with pygmy-owl needs, and are therefore not in need of special 

management considerations or protection.

    (6c) Comments: Exemption of Tribal lands is illegal, and there is 

no evidence that current densities on Tribal lands are as high as 

historical levels, nor that the population is increasing. The Service 

states that, because the owl occurs on the reservation, Tribal 

management is compatible with pygmy-owls. Failure to designate critical 

habitat on Tribal lands violates the Equal Protection Clause of the 

United States Constitution and the Administrative Procedures Act.

    Service Response: Given the lack of species' location and habitat 

information on Tribal lands available at the time of drafting the 

proposed rule, we were unable to thoroughly assess either the status of 

the species on those lands, or the management practices currently 

employed by the tribes. The court's order required publication of a 

proposed rule within only 30 days and a final rule in 6 months. Given 

the extensive preparation and review requirements of publishing a 

proposed rule, our staff had but a few days to develop the critical 

habitat maps and determine what areas are both essential to the 

species' conservation and in need of special management considerations 

or protection. Further, Secretarial Order 3206 requires significant 

coordination with Tribal governments, as well as several specific 

determinations, prior to proposing Tribal land as critical habitat. The 

30 days allowed by the court precluded the analyses and coordination 

that would have been necessary before proposing critical habitat on 

Tribal lands. We therefore based our proposal on the best scientific 

and commercial information available, as required by the Act.

    (6d) Comments: To designate State trust lands because they are 

owned by the State is arbitrary, capricious, discriminatory, and 

unlawful; they should be treated as private lands. The Service 

considers State lands as public lands and therefore assumes that the 

limitations of use resulting from designation of critical habitat will 

not adversely affect the landowner. The Service did not justify the 

assumption that State lands require special management considerations.

    Service Response: We first identified areas essential to the 

conservation of the species. We looked first to Federal, then State 

lands to develop a configuration that would include most occupied 

pygmy-owl sites, connected across the species' range. Our reasoning was 

that the Act clearly puts the largest share of the burden on Federal 

agencies and Federal lands in conserving listed species. The Act also 

considers the states to be important partners in species' conservation 

efforts. Where possible, we therefore proposed Federal and State lands 

as the primary areas to concentrate pygmy-owl recovery, with private 

lands included where necessary. As stated in the economic analysis and 

this final rule, we do not believe the designation of critical habitat 

will have adverse economic effects on any landowner, including the 

State of Arizona, above and beyond the effects of listing of the 

species (McKenney et al. 1999).

    Future management practices of State trust lands are uncertain in 

areas we have determined essential to the recovery of this species and 

may in some instances not be compatible with conservation efforts; 

therefore, we believe that designation of these lands is warranted. We 

believe that designation of these and other lands as critical habitat 

does not result in additional economic or other effects to the 

landowner above that which would occur from listing the species.

    Issue 7: Legal and Procedural Comments.

    (7a) Comments: The Service did not consult, nor allow for an 

appropriate level of involvement with, the State of Arizona, counties, 

and cities in areas proposed as critical habitat.

    Service Response: In regard to the role of local governments in 

decisions to determine critical habitat, the Act requires we ``give 

actual notice of the proposed regulation (including the complete text 

of the regulation) to * * * each county or equivalent jurisdiction in 

which the species is believed to occur, and invite the comment of such 

agency, and each jurisdiction'' (section 4(b)(5)(A)(ii) of the Act). 

Due to the limited time allowed by the court and plaintiffs, we were 

not able to individually contact all of the entities that could be 

affected by this proposal; however, we notified each affected county, 

several cities, and many special interest groups of the proposed rule 

and draft economic analysis. All entities, including the State and 

local municipalities, were given ample opportunity, during two separate 

public comment periods and three public hearings, to submit their 

concerns and have them addressed in the final rule. Numerous local, 

city, county, State, and Federal agencies provided comments during two 

public comment periods and three public hearings; we reviewed and 

considered these comments in developing this final rule.

    (7b) Comments: The court order was not to designate critical 

habitat, but

[[Page 37431]]

rather to reconsider whether it was prudent to do so. The court 

referred to only 12 of the 28 items of evidence the Service provided in 

its original ``not prudent'' determination. Designation of critical 

habitat provides no additional benefits to the species and can lead to 

increased threats from bird watchers or retaliation against the species 

as happened with the Mexican wolf. The Service lacks sufficient 

original information and its original not prudent finding was correct 

until future research is done.

    Service Response: The Act requires the Secretary, ``to the extent 

prudent and determinable,'' to designate critical habitat concurrently 

with listing a species as threatened or endangered. Regulations under 

50 CFR Sec. 424.12(a)(1) state that critical habitat is not prudent 

when one or both of the following situations exist--(i) the species is 

threatened by taking or other human activity, and identification of 

critical habitat can be expected to increase the degree of such threat, 

or (ii) designation of critical habitat would not be beneficial to the 


    We determined in our final rule listing the species as endangered 

(62 FR 10730) that critical habitat designation would increase the 

threat of harassment of owls by bird watchers and increase the 

potential for vandalism. The court found this determination to be 

arbitrary and capricious, and remanded the ``not prudent'' finding to 


    As stated in our economic analysis (McKenney et al. 1999), we 

believe that designation of critical habitat for the pygmy-owl provides 

no significant additional impacts or benefits to the species beyond 

that which would occur, or is provided, through listing the species as 

endangered. While we believe this argument fits the second argument for 

a ``not prudent'' finding, the court order cited a previous finding in 

the 9th Circuit (Natural Resources Defense Council v. Department of 

Interior; 113 F3d 1121, 1126) that it was Congress' intent that the 

imprudence exception be a rare exception. This and other statements in 

the court order led us to believe that another ``not prudent'' finding 

based on the available information would be inconsistent with the court 


    (7c) Comment: The biological benefits of critical habitat are 

outweighed by the benefits of exclusion.

    Service Response: Section 4(b)(2) of the Act and 50 CFR Sec. 424.19 

requires us to consider excluding areas from critical habitat 

designation if we determine that the benefits of exclusion outweigh the 

benefits of designating the area as critical habitat, unless that 

exclusion will lead to extinction of the species concerned. As 

discussed in this final rule, we have determined that no adverse 

economic or other effects will result from this critical habitat 

designation (McKenney et al. 1999). Therefore, no areas were found 

where the benefits of exclusion outweighed the benefits of including 

the areas as critical habitat.

    (7d) Comments: The Service must consider the entire range, 

including Mexico, in determining areas of critical habitat. The Service 

has never found that the Arizona population is a distinct population 

segment from the Mexican population.

    Service Response: Regulations at 50 CFR Sec. 424.12(h) state that 

critical habitat shall not be designated within foreign countries or in 

other areas outside of United States jurisdiction. We agree that the 

status of the species in Mexico will be an important consideration in 

recovery of the species in Arizona. However, maintenance of a healthy 

population in the U.S. also depends on areas within the pygmy-owls' 

historical U.S. range, and we have determined that those areas are 

essential to the species' conservation.

    (7e) Comment: The Service failed to comply with a number of 

required determinations, including Executive Orders 12291, 12630, 

12866, and 50 CFR Secs. 424.12(c)(d), and Sec. 424.19 as well as the 

Regulatory Flexibility Act and the Unfunded Mandates Reform Act.

    Service Response: These Executive Orders and other Acts are 

discussed in the ``Required Determinations'' section of this final 

rule. Issues pertaining to 50 CFR Sec. 424.14(c)(d) and 424.19 are 

addressed elsewhere in this final rule.

    (7f) Comment: Critical habitat will have potential impacts on water 

resource use by Arizona and local agencies. How has the Service 

coordinated with these groups to resolve water resources issues?

    Service Response: This final rule does not authorize our 

jurisdiction over water rights, and we do not anticipate impact to 

local economies or citizens as a result of this designation as we state 

elsewhere in this rule. Critical habitat designation does not, in 

itself, restrict groundwater pumping or water diversions; nor does it 

in anyway restrict or usurp water rights or violate State or Federal 

water laws. Local agencies, governments, and individuals have had the 

opportunity to provide comments during two comment periods, and three 

public hearings. We will work with these groups during the section 7 

consultation process as necessary to ensure their activities comply 

with the Act and other Federal and State laws.

    (7g) Comment: Designation of critical habitat on Arizona State 

trust lands violates the Arizona-New Mexico Enabling Act of 1910.

    Service Response: Under the provisions of the Arizona and New 

Mexico Enabling Act, in 1910, Congress granted title to certain Federal 

lands within the borders of Arizona to the State of Arizona for the 

purpose of creating a trust to provide financial support to the Arizona 

common schools, universities, and other public institutions operated by 

the State. However, the State trust created under the Enabling Act is 

not immune from the operation of otherwise applicable Federal law, 

including the Endangered Species Act. Further, we do not anticipate 

that critical habitat designation will affect the State's ability to 

utilize their trust lands in a manner that will provide financial 

support to State institutions. Even if there are situations where a 

State activity requires Federal authorization or funding, we do not 

anticipate any restrictions beyond those that may result from listing 

the pygmy-owl as endangered.

    (7h) Comments: Critical habitat should not have been proposed 

before an economic and other impacts analysis was completed, and the 

opportunity to comment on the economic analysis and the proposed rule 

was limited. Several requests were received to extend the public 

comment period.

    Service Response: We are not required to conduct an economic 

analysis at the time critical habitat is initially proposed. We 

published in the Federal Register (63 FR 71820) the availability of the 

proposed rule and invited public comment which we used to develop a 

draft economic analysis (McKenney et al. 1999). We invited public 

comments for 30 days on this draft analysis, which we believe was 

sufficient given the short-time frame ordered by the court. Because of 

the court-ordered time frame, we were not able to extend the public 

comment period.

    (7i) Comment: Maps and descriptions provided are vague and violate 

the Act and 50 CFR Sec. 424.12(c).

    Service Response: This final rule contains the required legal 

descriptions of areas designated as critical habitat. The accompanying 

maps are for illustration purposes. If additional clarification is 

necessary, contact the Arizona Ecological Service Field Office (see 

ADDRESSES section). We identified specific areas referenced by specific 

legal description, roads, railroads, and other landmarks, which are 

found on standard topographic maps.

[[Page 37432]]

    (7j) Comment: Once land is designated as critical habitat it will 

likely result in a panoply of Federal, State, and local land use laws, 

and restrictions or extra procedures.

    Service Response: We are unaware of any information that indicates 

any new State or local laws, restrictions, or procedures will result 

from critical habitat designation. Should any State or local regulation 

be promulgated as a result of this rule, this would be outside of the 

authority of the Service under the Act. The comment is correct in that 

projects funded, authorized, or carried out by Federal agencies, and 

that may affect critical habitat, must undergo consultation under 

section 7 of the Act on the effects of the action on critical habitat. 

However, as stated elsewhere in this final rule, we do not expect the 

result of those consultations to result in any restrictions that would 

not be required as a result of listing the pygmy-owl as an endangered 


    (7k) Comment: Additional areas not identified in the proposed rule 

should be designated critical habitat.

    Service Response: Section 4(b)(4) of the Act requires that 

designation of critical habitat undergo the regulation promulgation 

procedures identified under 5 U.S.C. 553. That is, areas designated as 

critical habitat must first be proposed as such. Thus, we cannot make 

significant additions in the final rule to the areas included in the 

proposed rule. Designation of such areas would require new proposed and 

final rules. The Act explicitly states that not all suitable or 

occupied habitat be designated as critical habitat, rather only those 

essential for the conservation of the species (50 CFR Sec. 424.12 (e)).

    The pygmy-owl recovery team is currently developing a recovery plan 

for this species. During the development of a recovery strategy, the 

team will not only closely examine areas designated as critical habitat 

but also all lands within the listed population, to determine their 

importance and role in the recovery of the species. This process will 

allow substantially more in-depth analysis than we were afforded by the 

court and plaintiffs to designate critical habitat. If the recovery 

team, as a result of new information or analysis, further refines those 

areas designated in this final rule or identifies additional areas 

which they determine are essential to the conservation of the species, 

we will evaluate whether a revision of critical habitat is warranted at 

that time.

    Issue 8: Specific Projects and Activities.

    (8a) Comments: Critical habitat would affect specific projects such 

as erosion control measures on Brawley Wash and fire management in the 

Altar and Falcon Valley regions. Grazing would be affected by 

designation on private lands.

    Service Response: Critical habitat designations only apply to 

Federal lands, or federally funded or authorized projects on private 

lands. If there is no Federal nexus or involvement, then additional 

considerations are not necessary (see Issue 2 above). Where a Federal 

nexus exists, designation of critical habitat does not preclude 

projects or activities such as riparian restoration, erosion control, 

fire management, or grazing if they do not cause an adverse 

modification of critical habitat. We will work with landowners within 

designated critical habitat and Federal agencies that are required to 

consult with us under section 7 of the Act to ensure that land 

management will not adversely modify critical habitat. We also 

encourage landowners to restore riparian habitats including erosion 

control measures, and we can provide financial and technical assistance 

through our Partners for Fish and Wildlife Program.

    (8b) Comment: Designation of areas with existing pipelines and 

aqueducts would be affected and should be excluded. Routine maintenance 

of trails should be excluded.

    Service Response: Periodic maintenance of existing pipelines, 

roads, trails, or aqueducts would not typically constitute adverse 

modification of critical habitat. These areas generally lack the 

primary constituent elements described in this rule, and it is our 

intention to exclude such areas by definition. If maintenance would 

require removal of constituent elements, and Federal involvement is 

part of that activity, then section 7 consultation may be necessary.

    (8c) Comment: Designation of critical habitat may compromise 

wildfire prevention and suppression activities in those areas.

    Service response: We agree that wildfire prevention and suppression 

activity is very important to protect human life and property, and also 

from a resource protection standpoint. Fire protection of areas 

designated as critical habitat will be essential to ensure the 

conservation of the species. We will work with all landowners and 

managers responsible for these activities to ensure adequate fire 

prevention and suppression measures are in place and to protect 

resource values. Only fire prevention and suppression activity 

undertaken or funded by a Federal agency would require consultation 

under section 7 of the Act. Non-Federal activities will not be affected 

by critical habitat designation.

    Issue 9: Economic Impacts.

    (9a) Comment: The assumption applied in the economic analysis that 

the designation of critical habitat will cause no impacts above and 

beyond those caused by listing of the species is faulty, legally 

indefensible, and contrary to the ESA. ``Adverse modification'' and 

``jeopardy'' are different, will result in different impacts, and 

should be analyzed as such in the economic analysis.

    Service Response: The designation of critical habitat for the 

pygmy-owl has been evaluated in the economic context known as ``with'' 

and ``without'' the rule. It was found that the survival of the pygmy-

owl makes it necessary that any adverse modification of its habitat 

would jeopardize the species. Under this condition, any and all 

economic consequences would be due to the jeopardy call under section 7 

of the Act, and an adverse modification without a jeopardy call would 

not occur. Further, it is our position that both within and outside of 

critical habitat, Federal agencies should consult under the jeopardy 

standard if a proposed action is (1) within the geographic areas 

occupied by the species, whether or not owls have been detected on the 

specific project site; (2) the project site contains habitat features 

that can be used by the species; and (3) the proposed action is likely 

to adversely affect that habitat. The economic consequences identified 

during the comment period are all due to the listing of the pygmy-owl 

and not the designation of critical habitat. The economic analysis of 

designating critical habitat determined that the same regulatory 

process is in place ``with'' as well as ``without'' the rule, and 

consequently found no economic effects.

    (9b) Comment: The proposed designation of critical habitat will 

impose economic hardship on private landowners and businesses. There is 

an expressed concern that the proposed critical habitat designation 

would have serious financial implications for commercial and 

residential development businesses. It is suggested that designation 

would result in reduced property values, lost tax revenues, lost jobs, 

and foregone economic activity.

    Service Response: As stated in the economic analysis, the proposed 

rule to designate critical habitat for the pygmy-owl is not adding any 

new requirements to the current regulatory process. Since the adverse 

modification standard for critical habitat and the jeopardy standard 

are almost identical, the listing of the pygmy-owl itself initiated the 

requirement for consultation. This

[[Page 37433]]

critical habitat designation adds no additional requirements not 

already in place due to the species' listing.

    (9c) Comment: There is an expressed concern that the delay in 

acquiring Federal permits or the inability to acquire permits for 

further development, as a result of section 7 consultation, would be an 

economic hardship to both developers and homeowner associations.

    Service Response: The requirement for Federal agency consultation 

under section 7 of the Act for actions they carry out, fund, or 

authorize on Federal or non-Federal lands resulted from listing of the 

species, and no new requirements are imposed by critical habitat 


    (9d) Comment: There is an expressed concern that the value and 

security of bonds issued to construct public infrastructure might be 

threatened by critical habitat designation.

    Service Response: Bonds issued by non-Federal entities that are not 

insured by the Federal Government do not constitute a Federal nexus. 

However, an incidental take permit issued under section 10 of the Act 

would still be required if a taking of the pygmy-owl is possible. The 

designation of critical habitat does not add any additional 

requirements to the section 10 incidental take permit process.

    (9e) Comment: There is an expressed concern that all property 

owners who will be adversely affected by the designation of critical 

habitat should be provided just compensation.

    Service Response: This designation of critical habitat will not add 

any additional restrictions and will not affect property owners beyond 

those restrictions resulting from the listing of the pygmy-owl as 


    (9f) Comment: Critical habitat may disrupt current and future 

Federal, State, and County land management activities and cause 

economic losses.

    Service Response: Federal agencies are required to consult with us 

when a species is listed under the Act. State and County entities are 

not required to consult with us unless a Federal nexus exists. The 

designation of critical habitat does not add any new requirements or 


    (9g) Comment: The designation will have harmful impacts on the 

quality of life, education, and economic stability of small towns. 

There is an expressed concern that the proposed critical habitat 

designation will change water diversions, groundwater pumping, road 

maintenance and land development.

    Service Response: As stated in the economic analysis, the proposed 

rule to designate critical habitat for the pygmy-owl is not adding any 

new requirements to the regulatory process. Since the adverse 

modification standard of critical habitat and the jeopardy standard are 

nearly identical, the listing of the pygmy-owl itself placed the 

requirement for consultation. This final rule to designate critical 

habitat adds no additional requirements that were not already in place 

due to the species' listing.

    (9h) Comment: There is an expressed concern that the designation 

would limit the construction of much needed schools, colleges, and 

community and recreation centers, thereby threatening the ability of 

small towns affected by the designation to expand and diversify their 

economy and to improve education.

    Service Response: As previously stated, this final rule designating 

critical habitat will not impose additional restrictions on private, 

cities, counties, State or Federal lands. Restrictions already in place 

due to the listing of the pygmy-owl require consultation with us when 

there is a Federal nexus. Any limitations or restrictions on 

construction were imposed due to the species' listing. Additional 

restrictions are not expected.

    (9i) Comment: There is an expressed concern that the economic 

stability of the towns of Kearny, Hayden, and Winkelman, as well as 

Pinal and Gila counties, depends on the continued operation of their 

mining complex, and further regulatory costs would threaten the 


    Service Response: Critical habitat designation will not add new 

restrictions beyond those imposed by the listing of the pygmy-owl.

    (9j) Comment: The Service's designation of critical habitat has not 

adequately considered potential economic implications. There is 

opposition to the fact that the Service did not prepare an initial 

regulatory flexibility analysis to address potential impact to small 

businesses, as required under the Regulatory Flexibility Act.

    Service Response: The proposed rule was published under very tight 

time constraints by the court order on December 24, 1998. At that time 

we prepared a record of compliance (ROC) that the proposed critical 

habitat designation would not have a significant economic impact on 

small entities. A detailed analysis was initiated by a private firm 

under contract and subsequently, we distributed a draft of the economic 

analysis for a 30-day public comment period ending in May, 1999. The 

findings of the economic analysis indicate that the designation of 

critical habitat adds no new restrictions on economic activity that 

were not due to the listing of the pygmy-owl. Therefore, there are no 

economic effects on small entities attributable to this final rule, and 

a regulatory impact analysis is not required.

    (9k) There is a concern that the different jurisdictions impacted 

by critical habitat designation should be addressed separately; impacts 

should be addressed as individual cases, not collectively.

    Service Response: If the economic analysis would have detected 

economic effects attributable to the critical habitat designation, then 

those effects would have been enumerated for each of the areas of 

critical habitat and would have been estimated for each type of land 

and management involved. This information would have been used by the 

Secretary of the Department of the Interior to determine if the 

benefits of exclusion of the land outweighed the benefits of including 

the land as critical habitat. There are no economic effects 

attributable to critical habitat designation so the issue of separating 

economic effects is a moot point.

Summary of Changes From the Proposed Rule

    Below is a summary of the changes made to the legal descriptions 

for the cactus ferruginous pygmy-owl critical habitat designation. The 

maps included in the proposed rule accurately depicted the critical 

habitat proposed by the rule. Based on the comments we received, we 

discovered that several areas within the proposed critical habitat were 

not accurately described by the legal descriptions in the proposed 

rule, although the areas were accurately depicted on the maps. As 

discussed below, we are clarifying the legal descriptions in this final 

designation to conform to the area depicted by the maps, which remain 


    Changes in the legal descriptions below are of three types: (1) The 

result of typographical errors discovered after publication of the 

proposed rule; (2) corrections in sectional descriptions resulting from 

the use of more up-to-date Public Land Survey System data obtained from 

the Arizona Land Resource Information System (ALRIS) to more closely 

reflect mapped information of the proposed rule; and (3) clarification 

of the description for Tucson Mountain County Park, the boundary of 

which was obtained from Pima County Public Works and is more up-to-date 

than that depicted on the BLM map cited in the proposed rule and which 

was available from ALRIS.

[[Page 37434]]

Unit 1:

T. 19 S., R. 7 E.

T. 19 S., R. 8 E.

T. 21 S., R. 7 E.

Unit 2:

T. 14 S., R. 11 E.

T. 14 S., R. 12 E.

Unit 5b:

T. 9 S., R. 14 E.

Unit 6:

T. 4 S., R. 14 E.

T. 6 S., R. 15 E.

T. 6 S., R. 16 E.

T. 8 S., R. 16 E.

T. 9 S., R. 18 E.

T. 11 S., R. 18 E.

T. 12 S., R. 19 E.

Unit 7:

T. 1 N., R. 9 E.

    As a result of using ALRIS data for ownership, the acres summary in 

Table 1 also changed. The total acres increased by about 1% with the 

greatest change in Pinal County where BLM's total was reduced and the 

``Other'' category picked up that reduction. This is largely due to 

acreage originally identified as BLM that was actually Bureau of 

Reclamation when the newer data sets were analyzed. The remaining 

acreage differences are attributed to the differing methods of 

determining acres. For the proposed rule, sections and ownership were 

roughly counted and totaled manually by visual inspection of the cited 

maps. Subsequently, digital information was obtained from ALRIS and 

Pima County, which was used to create the updated version of Table 1 

(as well as the legal descriptions).

    Finally, as mentioned previously, lands in Tribal grazing 

allotments are excluded from critical habitat. We determined that 

pygmy-owl conservation could be adequately ensured without designation 

of the approximately 240 acres.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 

habitat on the basis of the best scientific and commercial information 

available and to consider the economic and other relevant impacts of 

designating a particular area as critical habitat. We may exclude areas 

from critical habitat upon a determination that the benefits of such 

exclusions outweigh the benefits of specifying such areas as part of 

critical habitat. We cannot exclude areas from critical habitat if such 

exclusion would result in the extinction of the species concerned.

    Economic effects caused by listing the pygmy-owl as endangered and 

by other statutes are the baseline upon which critical habitat is 

imposed. The economic analysis must then examine the incremental 

economic and conservation effects of the critical habitat addition. 

Economic effects are measured as changes in national income, regional 

jobs, and household income. An analysis of the economic effects of 

pygmy-owl critical habitat designation was prepared (McKenney et al. 

1999) and made available for public review (April 15-May 15, 1999; 64 

FR 18597). The final analysis, which reviewed and incorporated public 

comments, concluded that no economic impacts are expected from critical 

habitat designation above and beyond that already imposed by listing 

the pygmy-owl. The only possible economic effects of critical habitat 

designation are on activities funded, authorized, or carried out by a 

Federal agency. These activities would be subject to section 7 

consultation if they may affect critical habitat. However, activities 

that may affect critical habitat may also affect the species, and would 

thus be subject to consultation regardless. Also, changes or mitigating 

measures that might increase the cost of the project would only be 

imposed as a result of critical habitat if the project adversely 

modifies or destroys that critical habitat. We believe that any project 

that would adversely modify or destroy critical habitat would also 

jeopardize the continued existence of the species and that reasonable 

and prudent alternatives to avoid jeopardizing the species would also 

avoid adverse modification of critical habitat. Thus, no regulatory 

burden or additional costs would accrue because of critical habitat 

above and beyond that resulting from listing.

    A copy of the economic analysis and description of the exclusion 

process with supporting documents are included in our administrative 

record and may be obtained by contacting our office (see ADDRESSES 


Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, we submitted this action 

for review by the Office of Management and Budget. Because the economic 

analysis identified no economic benefits from excluding any of the 

proposed critical habitat areas, we made a determination to designate 

all proposed critical habitat units. No inconsistencies with other 

agencies' actions and/or effects on entitlements, grants, user fees, 

loan programs, or the rights and obligations of their recipients, were 

identified in the economic analysis. This rule does not raise novel 

legal or policy issues.

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

    In the economic analysis we determined that designation of critical 

habitat will not have a significant effect on a substantial number of 

small entities. As discussed in that document and in this final rule, 

designation of critical habitat will not restrict any actions beyond 

those already resulting from listing the pygmy-owl. We recognize that 

some towns, counties, and private entities are considered small 

entities in accordance with the Regulatory Flexibility Act, however, 

they also are not affected by the designation of critical habitat 

because no additional restrictions will result from this action.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))

    In the economic analysis we determined that designation of critical 

habitat will not cause--(a) any effect on the economy of $100 million 

or more; (b) any increases in costs or prices for consumers, individual 

industries, Federal, State, or local government agencies, or geographic 

regions in the economic analysis; or (c) any significant adverse 

effects on competition, employment, investment, productivity, 

innovation, or the ability of U.S.-based enterprises to compete with 

foreign-based enterprises.

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

    In the economic analysis we determined that no effects would occur 

to small governments as a result of critical habitat designation.


    In accordance with Executive Order 12630, this rule does not have 

significant takings implications, and a takings implication assessment 

is not required. This designation will not ``take'' private property 

and will not alter the value of private property. Critical habitat 

designation is only applicable to Federal lands and to private lands if 

a Federal nexus exists.


    This rule will not affect the structure or role of States, and will 

not have direct, substantial, or significant effects on States. As 

previously stated, critical habitat is only applicable to Federal lands 

and to non-Federal lands when a Federal nexus exists, and in the 

economic analysis we determined that no economic impacts would result 

from critical habitat designation.

[[Page 37435]]

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 

Interior's Office of the Solicitor has determined that this rule does 

not unduly burden the judicial system and does meet the requirements of 

sections 3(a) and 3(b)(2) of the Order. We have made every effort to 

ensure that this final determination contains no drafting errors, 

provides clear standards, simplifies procedures, reduces burden, and is 

clearly written such that litigation risk is minimized.

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

    This rule does not contain any information collection requirements 

for which Office of Management and Budget approval under the Paperwork 

Reduction Act is required.

National Environmental Policy Act

    We have determined that EAs and EISs, as defined under the 

authority of the National Environmental Policy Act of 1969 (NEPA), need 

not be prepared in connection with regulations adopted pursuant to 

section 4(a) of the Act. We published a notice outlining our reasons 

for this determination in the Federal Register in October, 1983 (48 FR 


Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 

``Government-to-Government Relations with Native American Tribal 

Governments'' (59 FR 22951) and 512 DM 2: We understand that we must 

relate to federally recognized Tribes on a Government-to-Government 

basis. Secretarial Order 3206 American Indian Tribal Rights, Federal-

Tribal Trust Responsibilities and the Endangered Species Act states 

that ``Critical habitat shall not be designated in such areas an area 

that may impact Tribal trust resources unless it is determined 

essential to conserve a listed species. In designating critical 

habitat, we shall evaluate and document the extent to which the 

conservation needs of a listed species can be achieved by limiting the 

designation to other lands.'' Pygmy-owl critical habitat does not 

contain any Tribal lands nor lands that we have identified as impacting 

Tribal trust resources.

References Cited

    A complete list of all references cited in this final rule is 

available upon request from the Arizona Ecological Services Field 

Office (see ADDRESSES section).


    The primary author of this notice is Mike Wrigley (see ADDRESSES 


List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 

recordkeeping requirements, Transportation.

    For the reasons given in the preamble, we amend 50 CFR part 17 as 

set forth below:


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

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544 16 U.S.C. 

4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. In Sec. 17.11(h) revise the entry for ``Pygmy-owl, cactus 

ferruginous'' under ``BIRDS'' to read as follows:

Sec. 17.11  Endangered and threatened wildlife.

* * * * *

    (h) * * *


                          Species                                                      Vertebrate

------------------------------------------------------------                        population where                              Critical     Special

                                                                 Historic range       endangered or      Status    When listed    habitat       rules

            Common name                  Scientific Name                               threatened



                   *                  *                  *                  *                  *                  *                  *

Pygmy-owl, cactus ferruginous......  Glaucidium brasilianum  U.S.A. (AZ, TX),       AZ                          E          600  Sec.  17.95           NA

                                      cactorum.               Mexico.                                                                   (b)

                   *                  *                  *                  *                  *                  *                  *


    3. Amend section 17.95(b) by adding critical habitat for the cactus 

ferruginous pygmy-owl (Glaucidium brasilianum cactorum) in the same 

alphabetical order as this species occurs in 17.11(h).

Sec. 17.95  Critical habitat--fish and wildlife.

* * * * *

    (b) Birds.

* * * * *

Cactus ferruginous pygmy-owl (Glaucidium brasilianum cactorum)

    1. Critical habitat units are depicted for Pima, Cochise, Pinal, 

and Maricopa counties, Arizona, on the maps below. The maps are for 

reference only; the areas in critical habitat are legally described 


    2. Within these areas, the primary constituent elements are 

those habitat components that are essential for the primary 

biological needs of foraging, nesting, rearing of young, roosting, 

sheltering, and dispersal or the capacity to develop those habitat 

components. The primary constituent elements are found in areas that 

support, or have the potential to support, riparian forests, 

riverbottom woodlands, xeroriparian forests, and semidesert 

grassland, and the Arizona upland subdivision of Sonoran 

desertscrub. Within these vegetation communities, specific plant 

associations that are essential for the primary biological needs of 

the cactus ferruginous pygmy-owl include, but are not limited to, 

the following vegetation: cottonwood, willow, ash, mesquite, palo 

verde, ironwood, hackberry, saguaro cactus, and/or organ pipe 


    3. Critical habitat does not include non-Federal lands covered 

by a legally operative incidental take permit for the cactus 

ferruginous pygmy-owl issued under section 10(a) of the Act, nor 

Indian Tribal grazing allotments.

    Unit 1. Pima County, Arizona. From BLM map Sells, Ariz. 1979, 

Atascosa Mts., Ariz. 1979.

    Gila and Salt Principal Meridian, Arizona: T. 17 S., R. 8 E., 

secs. 1 to 3, E\1/2\ sec. 4, E\1/2\ sec. 9, secs. 10 to 16, 21 to 

36; T. 17 S., R. 9 E., that portion of sec. 1 lying west of St. Hwy 

286, secs. 2 to 10, those portions of secs. 11, 12, and 14 lying 

west of St. Hwy 286, secs. 15 to 22, those portions of secs. 23 and 

26 lying west of St. Hwy 286, secs. 27 to 34, that portion of sec. 

35 lying west of St. Hwy 286; T. 18 S., R 7 E., sec. 1, those 

portions of secs. 2 and 11 lying east of Papago Indian Reservation 

Bdy, sec. 12, those portions of secs. 13, 14, 24, 25, and 36 lying 

east of Papago Indian Reservation Bdy; T. 18 S., R. 8 E., secs. 1 to 

36; T. 18 S., R. 9 E., that portion of sec. 2 lying west of Hwy 286, 

secs. 3 to 10, those portions of secs. 11 and 14 lying west of St. 

Hwy 286, secs. 15 to 22, those portions of secs. 23, 26, 27 and 28 


[[Page 37436]]

west and north of St. Hwy 286, secs. 29 to 31, those portions of 

secs. 32 and 33 lying west and north of St. Hwy 286; T. 19 S., R. 7 

E., those portions of secs. 1, 12, 13, 14, and 23 lying east of 

Papago Indian Reservation Bdy, secs. 24 and 25, those portions of 

secs. 26 and 34 lying east of Papago Indian Reservation Bdy, secs. 

35, 36; T. 19 S., R. 8 E., secs. 1 to 12, N\1/2\ sec. 13, secs. 14 

to 21, W\1/2\ sec. 22, S\1/2\ sec. 26, S\1/2\ & NW\1/4\ sec. 27, 

secs. 28 to 35; T. 19 S., R. 9 E., sec. 6; T. 20 S., R. 7 E., secs. 

1, 2, those portions of secs. 3, 9, and 10 lying east of Papago 

Indian Reservation Bdy, secs. 11 to 15, those portions of secs. 16, 

17, and 21 lying east of Papago Indian Reservation Bdy, secs. 22 to 

27, those portions of secs. 28, 29, 32, and 33 lying east of Papago 

Indian Reservation Bdy, secs. 34 to 36; T. 20 S., R. 8 E., secs. 2 

to 11, 14 to 23, 27 to 33; T. 21 S., R. 7 E., secs. 1 to 4, those 

portions of secs. 5 and 8 lying east of Papago Indian Reservation 

Bdy, secs. 9 to 16, those portions of secs. 17 and 20 lying east of 

Papago Indian Reservation Bdy, secs. 21 to 27, those portions of 

secs 28 and 29 lying east of Papago Indian Reservation Bdy, that 

portion of sec. 33 lying north of Papago Indian Reservation Bdy, 

secs. 34 to 36; T. 21 S., R. 8 E., secs. 4 to 9; T. 22 S., R. 7 E., 

secs. 1 to 3, 10 to 15, 22 to 25; T. 22 S., R. 8 E., S\1/2\ SW, 

SW\1/4\ SE\1/4\ sec. 18, W\1/2\ & W\1/2\ E\1/2\ sec. 19, that 

portion of sec. 20 outside Buenos Aires NWR Bdy, secs. 29, 30.

    Unit 2. Pima County, Arizona. From BLM map Silver Bell Mts., 

Ariz. 1977.

    Gila and Salt Principal Meridian, Arizona: T. 13 S., R. 9 E., 

secs. 31 to 36; T. 13 S., R. 10 E., secs. 31 to 36; T. 13 S., R. 12 

E., those portions of secs. 31 to 34 lying within Tucson Mountain 

County Park; T. 14 S., R. 9 E., secs. 1 to 12; T. 14 S., R. 10 E., 

secs. 1 to 12; T. 14 S., R. 11 E., that portion of secs. 1 and 2 

lying within the Tucson Mountain County Park, secs. 5 to 8, 10, 11, 

those portions of secs. 12 and 13 lying within Tucson Mountain 

County Park, secs. 14 and 15; T. 14 S., R. 12 E., those portions of 

secs. 1 to 25, lying within Tucson Mountain County Park; T. 14 S. R. 

13 E., those portions of secs. 7, 18, 19, 28, 29, and 30 lying 

within Tucson Mountain County Park. (Note: Areas described for 

Tucson Mountain County Park do not match the Silver Bell Mts., Ariz. 

BLM map cited above. This description is based on more recent 

information obtained from Pima County Public Works.)

    Unit 3. Pima County, Arizona. From BLM map Silver Bell Mts., 

Ariz. 1977.

    Gila and Salt Principal Meridian, Arizona: T. 12 S., R. 12 E., 

those portions of secs. 8 and 9 lying south and west of Interstate 

10, secs. 17, 20, and 29.

    Unit 4. Pima and Pinal Counties, Arizona. From BLM maps Casa 

Grande, Ariz. 1979, Silver Bell Mts., Ariz. 1977.

    Gila and Salt Principal Meridian, Arizona: T. 10 S., R. 11 E., 

secs. 1 to 36; T. 10 S., R. 12 E., secs. 4 to 9, 16 to 21, 28 to 33; 

T. 11 S., R. 11 E., secs. 1 to 5, 9 to 15, secs. 23, 24; T. 11 S., 

R. 12 E., secs. 3 to 10, 14 to 30, N\1/2\ sec. 31, secs. 32 to 36; 

T. 11 S., R. 13 E., secs. 19, 28 to 33; T. 12 S., R. 12 E., secs. 1 

to 4, those portions of secs. 8 and 9 lying north and east of 

Interstate 10, secs. 10 to 14, 23, 24, that portion of sec. 25 lying 

north of W. Cortaro Farms Road, that portion of sec. 26 lying north 

of W. Cortaro Farms Road and north and east of Interstate 10; T. 12 

S., R. 13 E., secs. 4 to 9, 16 to 21, those portions of secs. 29 and 

30 lying north of W. Cortaro Farms Road.

    Unit 5a. Pinal County, Arizona. From BLM maps Mesa, Ariz. 1979, 

Casa Grande, Ariz. 1979.

    Gila and Salt Principal Meridian, Arizona: T. 5 S., R. 11 E., 

secs. 1 to 36; T. 6 S., R. 11 E., secs. 1 to 36; T. 7 S., R. 11 E., 

secs. 1 to 36; T. 8 S., R. 11 E., secs. 1 to 36; T. 9 S., R. 11 E., 

secs. 1 to 36.

    Unit 5b. Pinal County, Arizona. From BLM maps Casa Grande, Ariz. 

1979, Mammoth, Ariz. 1986.

    Gila and Salt Principal Meridian, Arizona: T. 8 S., R. 15 E., 

secs. 1 to 36; T. 9 S., R. 12 E., secs. 1 to 36; T. 9 S., R. 13 E., 

secs. 1 to 36; T. 9 S., R. 14 E., secs. 1 to 31; T. 9 S., R. 15 E., 

secs. 1 to 12, 14 to 21, 28 to 30.

    Unit 6. Cochise, Pima, and Pinal Counties, Arizona. From BLM 

maps Mesa, Ariz. 1979, Globe, Ariz. 1986, Mammoth, Ariz. 1986, and 

Tucson, Ariz. 1979.

    Gila and Salt Principal Meridian, Arizona: T. 4 S., R. 9 E., 

those portions of secs. 1, 12, 13, and 24 lying east of U.S. Hwy 89; 

T. 4 S., R. 10 E., secs. 1 to 5, that portion of sec. 6 lying east 

of U.S. Hwy 89, secs. 7 to 24; T. 4 S., R. 11 E., secs. 7 to 36; T. 

4 S., R. 12 E., secs. 1 to 12; T. 4 S., R. 13 E., that portion of 

sec. 1 lying south and west of St. Hwy 177, secs. 2 to 12; T. 4 S., 

R. 14 E., those portions of secs. 5, 6, 7, 8, 16, and 17 lying south 

and west of St. Hwy 177, secs. 18, 20, those portions of secs. 21, 

22, 26, and 27, lying south and west of St. Hwy 177, secs. 28, 29, 

33, and 34, that portion of sec. 35 lying south and west of St. Hwy 

177; T. 5 S., R. 14 E., those portions of secs. 1 and 2 lying south 

and west of St. Hwy 177, secs. 3, 11, 12; T. 5 S., R. 15 E., those 

portions of secs. 6, 7, 8, 9, and 10 lying south and west of St. Hwy 

177, that portion of sec. 14 lying south and west of the Pinal and 

Gila Counties boundary (all within Pinal County), that portion of 

sec. 15 lying south of St. Hwy 177 and west of the Pinal and Gila 

Counties boundary (all within Pinal County), secs 16 to 22, that 

portion of sec. 23 lying south and west of the Pinal and Gila 

Counties boundary (all within Pinal County), that portion sec. 24 

lying west of St. Hwy 77 and south of Pinal and Gila Counties 

boundary (all within Pinal County), that portion of sec. 25 lying 

south and west of St. Hwy 77 and north and east of San Manuel 

Railroad, those portions of secs. 26 and 36 lying north and east of 

San Manuel Railroad; T. 5 S., R. 16 E., those portions of secs. 30 

and 31 lying south and west of St. Hwy 77; T. 6 S., R. 15 E., that 

portion of sec. 1 lying north and east of San Manuel Railroad; T. 6 

S., R. 16 E., that portion of sec. 5 lying south and west of St. Hwy 

77, that portion of sec. 6 lying south and west of St. Hwy 77 and 

north and east of San Manuel Railroad, that portion of sec. 7 lying 

north and east of San Manuel Railroad, that portion sec. 8 lying 

south and west of St. Hwy 77 and north and east of San Manuel 

Railroad, those portions of secs. 9 and 16 lying south and west of 

St. Hwy 77, those portions of secs. 17 and 20 lying east of San 

Manuel Railroad, those portions of secs. 21 and 28 lying west of St. 

Hwy 77, those portions of secs. 29 and 32 lying east of San Manuel 

Railroad, that portion of sec. 33 lying west of St. Hwy 77; T. 7 S., 

R. 16 E., that portion of sec. 4 lying west of St. Hwy 77, secs. 5 

to 8, those portions of secs. 9, 10, and 15 lying south and west of 

St. Hwy 77, secs. 16 to 21, those portions of secs. 22, 23, 25, and 

26 lying south and west of St. Hwy 77, secs. 27 to 35, that portion 

of sec. 36 lying south and west of St. Hwy 77; T. 8 S., R. 16 E., 

that portion of sec. 1 lying south and west of St. Hwy 77, secs. 2 

to 12, that portion of sec. 13 lying east of Camino Rio Road, secs. 

15 to 22, 28 to 32; T. 8 S., R. 17 E., that portion of sec. 6 south 

and west of St. Hwy 77, that portion of section 7 west of St. Hwy 77 

and west of River Road, that portion of sec. 17 lying south and west 

of River Road, that portion of sec. 18 south and west of River Road 

and north and east of a line defined by Camino Rio Road where it 

runs southeasterly from the west boundary of sec. 18 to its 

intersection with St. Hwy 77 then southeasterly along St. Hwy 77 to 

its intersection with Old State Hwy 77 then along Old State Hwy 77 

to its intersection with the south boundary of sec. 18, that portion 

of sec. 19 lying east of Old State Highway 77, those portions of 

secs. 20, 28, and 29 lying south and west of River Road, that 

portion of sec. 30 lying east of Old State Hwy 77 and St. Hwy 77, 

sec. 32, that portion of sec. 33 lying west of River Road; T. 9 S., 

R. 16 E., secs. 5 to 8; T. 9 S., R. 17 E., those portions of secs. 3 

and 4 lying west of River Road, sec. 9, those portions of secs. 10, 

14, and 15 lying west of River Road, NE\1/4\ sec. 22, those portions 

of secs. 23, 24, and 25 west of River Road; T. 9 S., R. 18 E., those 

portions of secs. 30, 31 and 32 west of River Road; T. 10 S., R. 18 

E., those portions of secs. 5, 6, 7, and 8 lying north and east of 

Redington Road, sec. 9, those portions of secs. 16, 17, and 21 lying 

north and east of Redington Road, secs. 22 and 27, those portions of 

secs. 28 and 33 lying east of Redington Road, sec. 34; T. 11 S., R. 

18 E., sec. 2, those portions of secs. 3 and 10 lying east of 

Redington Road, secs. 11 and 14, those portions of secs. 15 and 22 

lying east of Redington Road, secs. 23 and 26, that portion of sec. 

27 lying east of Redington Road, that portion of sec. 34 lying east 

of Redington Road and west of Cascabel Road, that portion of sec. 35 

lying west of Cascabel Road; T. 12 S., R. 18 E., that portion of 

sec. 2 west of Cascabel Road, that portion of sec. 3 lying east of 

Redington Road, those portions of secs. 11, 12, and 13 lying west of 

Cascabel Road; T. 12 S., R. 19 E., those portions of secs. 18, 19, 

29, and 30 lying west of Cascabel Road, sec. 31, that portion of 

sec. 32 and 33 lying west of Cascabel Road; T. 13 S., R. 19 E., that 

portion of sec. 4 lying west of Cascabel Road, sec. 5, those 

portions of secs. 9, 10, and 15 lying west of Cascabel Road.

    Unit 7. Maricopa and Pinal Counties, Arizona. From BLM maps 

Theodore Roosevelt Lake, Ariz. 1981 and Mesa, Ariz. 1979.

    Gila and Salt Principal Meridian, Arizona: T. 3 N., R. 7 E., 

that portion of sec. 33 lying easterly of Salt River Indian 

Reservation Bdy, secs. 34 to 36; T. 3 N., R. 8 E., secs. 31 to 33; 

T. 2 N., R. 7 E., secs. 1 to 3, those portions of secs. 4, 5, 6 and 

7 lying south and east of

[[Page 37437]]

Salt River Indian Reservation Bdy, secs. 8 to 17, that portion of 

sec. 18 lying south and east Salt River Indian Reservation Bdy, 

secs. 19 to 25, E \1/2\ sec. 26, E \1/2\ sec. 35, sec. 36; T. 2 N., 

R. 8 E., secs. 4 to 8, 18, 19, 25 to 36; T. 2 N., R. 9 E., secs. 30, 

31; T. 1 N., R. 9 E., secs. 6, 7, 18 to 21, 27 to 30, 34 to 36; T. 1 

N., R. 10 E., secs. 31, 32; T. 1 S., R. 9 E., secs. 1 to 3, 10 to 

15, 22 to 26, those portions of secs. 27, 35 and 36 lying north and 

east of U.S. Hwy 60/89; T. 1 S., R. 10 E., secs. 5 to 8, 17 to 20, 

29 to 32; T. 2 S., R. 9 E., that portion of sec 1 lying north and 

east of U.S. Hwy 60/89; T. 2 S., R. 10 E., secs. 1 to 5, those 

portions of secs. 6, 7 and 8 lying north and east of U.S. Hwy 60/89, 

secs. 9 to 16, that portion of sec. 17 lying north and east of U.S. 

Hwy 60/89 and south and east of U.S. Hwy 89, that portion of sec. 20 

lying east of U.S. Hwy 89, secs. 21 to 28, those portions of secs. 

29 and 32 lying east of U.S. Hwy 89, secs. 33 to 36: T. 3 S., R. 10 

E., secs. 1 to 4, those portions of secs. 5 and 8 lying east of U.S. 

Hwy 89, secs. 9 to 16, those portions of secs. 17, 18, and 19 lying 

east of U.S. Hwy 89, secs. 20 to 29, those portions of secs. 30 and 

31 lying east of U.S. Hwy 89, secs. 32 to 36.


[[Page 37438]]


[[Page 37439]]


[[Page 37440]]


    Dated: June 30, 1999.

Donald J. Barry,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 99-17404 Filed 7-6-99; 1:25 pm]