2002 Federal Register, 67 FR 71031; Centralized Library: U.S. Fish and Wildlife Service

[Federal Register: November 27, 2002 (Volume 67, Number 229)]
[Proposed Rules]
[Page 71031-71064]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27no02-29]

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Part V

Department of the Interior

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Fish and Wildlife Service

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50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the Arizona Distinct Population Segment of the Cactus
Ferruginous Pygmy-owl (Glaucidium brasilianum cactorum); Proposed Rule

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI48

Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Arizona Distinct Population Segment of the
Cactus Ferruginous Pygmy-owl (Glaucidium brasilianum cactorum)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; notice of availability.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose designation of
critical habitat pursuant to the Endangered Species Act of 1973, as
amended (Act), for the cactus ferruginous pygmy-owl (Glaucidium
brasilianum cactorum) (pygmy-owl). Information on the biological needs
of the pygmy-owl that would help us define areas essential to its
conservation is limited. However, we must respond to a court order
issued on September 21, 2001, vacating critical habitat established for
the pygmy-owl and remanding the previous designation of critical
habitat for preparation of a new analysis of the economic and other
effects of the designation (National Association of Home Builders et
al. v. Norton, Civ.-00-903-PHX-SRB). This proposed designation,
totaling approximately 488,863 hectares (ha) (1,208,001 acres (ac)),
includes portions of Pima and Pinal Counties, Arizona, and includes
approximately 9 percent of the recognized historical range of the
pygmy-owl in Arizona. If this proposal is made final, section 7 of the
Act would prohibit 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, we will consider
economic and other relevant impacts prior to making a final decision on
the size and configuration of critical habitat. We also announce the
availability of the draft economic analysis conducted on the proposed
designation of critical habitat for the pygmy-owl. We solicit data and
comments from the public on all aspects of this proposal, including
data on economic and other impacts of the designation. We may revise
this proposal to incorporate or address new information received during
the comment period. We expect to publish a notice making the draft
pygmy-owl recovery plan available for public comment in November 2002.

DATES: We will accept comments until February 25, 2003. We will hold
one public hearing on this proposed rule; we have scheduled the hearing
for January 23, 2003, from 6:30 p.m. to 9:00 p.m. in the Leo Rich
Theatre at the Tucson Convention Center in Tucson, AZ.

ADDRESSES: Send comments and information to the Field Supervisor,
Arizona Ecological Services Office, 2321 West Royal Palm Road, Suite
103, Phoenix, AZ 85021. Written comments may also be sent by facsimile
to 602/242-2513 or by electronic mail (email) to cfpo_habitat@fws.gov.
Copies of the draft economic analysis are available on the Internet at
http://ifw2irm2.irml.r2.fws.gov/, by writing the Field Supervisor at
the above address, or by calling 602/242-0210 to have a copy mailed to
you or that you may pick up at the address above. Comments and
materials received will be available for public inspection, by
appointment, during normal business hours at the above address. The
public hearing will be held in the Leo Rich Theatre at the Tucson
Convention Center at 206 South Church Avenue, Tucson, AZ, 85701.

FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor (see
ADDRESSES) (telephone 602/242-0210; facsimile 602/242-2513).

SUPPLEMENTARY INFORMATION:

Background

The cactus ferruginous pygmy-owl (Glaucidium brasilianum cactorum)
(pygmy-owl) is in the order Strigiformes and the family Strigidae. It
is a small bird, approximately 17 centimeters (cm) (6.75 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. Color may vary, with some
individuals being more grayish brown. The crown is lightly streaked,
and a pair of black/dark brown spots outlined in white occur on the
nape suggesting ``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 primarily
diurnal (active during daylight) with crepuscular (active at dawn and
dusk) tendencies. They can be heard making a long, monotonous series of
short, repetitive notes, mostly during the breeding season.
The 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 the pygmy-owl is listed as an endangered species
(62 FR 10730; March 10, 1997).
The total number of pygmy-owls and their distribution in Arizona
are unknown. Survey and monitoring work in Arizona resulted in
documenting 41 adult pygmy-owls in 1999, 34 in 2000, 36 in 2001, and,
most recently, 18 in 2002. A cumulative total of 85 occupied sites
(includes both single or paired birds) were recorded during these 4
years (Abbate et al. 1999, 2000, AGFD unpubl. data). Most of these
pygmy-owls were distributed in four general areas: northwest Tucson,
southern Pinal County, Organ Pipe Cactus National Monument, and the
Altar Valley. We believe that more pygmy-owls exist in Arizona, but
systematic surveys have not been conducted in all areas of potential
habitat.
In addition, recent survey information has shown pygmy-owls to be
more numerous adjacent to and near the Arizona border in Mexico (Flesch
and Steidl 2000). There also exists considerable unsurveyed habitat on
the Tohono O'odham Nation, and, although we have no means of
quantifying this habitat, the distribution of recent sightings on non-
Tribal areas east, west, and south of the U.S. portion of the Tohono
O'odham Nation lead us to reasonably conclude that these Tribal lands
may support meaningful numbers of pygmy-owls. Consequently, we believe
that it is highly likely that the overall pygmy-owl population in
Arizona is maintained by the movement and dispersal of owls among
groups of pygmy-owls in southern Arizona and northern Mexico resulting
from the connectivity of suitable habitat. The extent to which pygmy-
owls disperse across the U.S./Mexico border is unknown. Therefore,
addressing habitat connectivity and the movements of pygmy-owls within
Arizona is the primary consideration of this proposal due to the
importance of maintaining dispersal and movement among pygmy-owl
groups.
Given recent data, it is probable that conservation of the pygmy-
owl in Arizona requires both sufficient numbers and productivity of
pygmy-owls north of the border and immigration of pygmy-owls from
Mexico into Arizona, although we do not know at this time to what
extent immigration does or needs to occur.
The patchy, dispersed nature of the pygmy-owl population in Arizona
suggests that the overall population may function as a metapopulation.
A metapopulation is a set of

[[Page 71033]]

subpopulations within an area, where movement and exchange of
individuals among population segments is possible, but not routine. A
metapopulation's persistence depends on the combined dynamics of the
productivity of subpopulations, the maintenance of genetic diversity,
the availability of suitable habitat for maintenance and expansion of
subpopulations, and the ``rescue'' of subpopulations that have
experienced local extinctions by the subsequent recolonization of these
areas by dispersal from adjacent population segments (Hanski 1999,
Hanski and Gilpin 1991, 1997). The local groups of pygmy-owls within
Arizona may function as subpopulations within the context of
metapopulation theory. However, more information is needed regarding
the population dynamics of pygmy-owls in Arizona.
Historically, pygmy-owls were recorded in association with riparian
woodlands in central and southern Arizona (Bendire 1892, Gilman 1909,
Johnson et al. 1987). Plants present in these riparian communities
included cottonwood (Populus fremontii), willow (Salix spp.), ash
(Fraxinus velutina), and hackberry (Celtis spp.). However, recent
records have documented pygmy-owls in a variety of vegetation
communities such as riparian woodlands, mesquite (Prosopis velutina,
and P. glandulosa) bosques (Spanish for woodlands), Sonoran
desertscrub, semidesert grassland, and Sonoran savanna grassland
communities (see Brown 1994 for a description of these vegetation
communities). While native and nonnative plant species composition
differs among these communities, there are certain unifying
characteristics such as the presence of vegetation in fairly dense
thickets or woodlands, the presence of trees, saguaros (Carnegiea
giganteus), or organ pipe cactus (Stenocereus thurberi) large enough to
support cavities for nesting, and elevations 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, Proudfoot
and Johnson 2000). Large trees provide canopy cover and cavities used
for nesting, while the density of mid- and lower-story vegetation
provides foraging habitat and protection from predators, and it
contributes to the occurrence of prey items (Wilcox et al. 2000).
The density of trees and the amount of canopy cover preferred by
pygmy-owls in Arizona has not been fully defined. However, preliminary
results from a habitat selection study indicate that nest sites tend to
have a higher degree of canopy cover and higher vegetation diversity
than random sites (Wilcox et al. 2000). Overall vegetation density may
not be as important as patches of dense vegetation with a developed
canopy layer interspersed with open areas. Vegetation structure may be
more important than species composition (Wilcox et al. 1999, Cartron et
al. 2000). This is related to the fact that canopy cover and layers of
vegetation provide hunting perches, thermal cover, and promote predator
avoidance regardless of species. Larger trees with greater canopy also
have a greater potential to support cavities needed for nesting. Flesch
(1999) indicated that areas with large trees and canopy coverage are
likely important areas for pygmy-owls in the Altar Valley. Riparian and
xeroriparian (dry washes) areas, which are often used by pygmy-owls,
are generally characterized by increased vegetation layers, higher
plant diversity and larger tree sizes because of increased moisture
availability.
Background information on the ecology and life history of pygmy-
owls relied on many of the documents reviewed during the proposed
listing (59 FR 63975; December 12, 1994) and final listing (62 FR
10730; March 10, 1997) and our previous designation of critical habitat
(64 FR 37419; July 12, 1999). We have also reviewed biological data
from pygmy-owl studies made available since the previous designation
(Abbate et al. 1999, 2000, Cartron and Finch 2000, Proudfoot and
Johnson 2000, Wilcox, et al. 2000). Since the previous designation of
critical habitat, there were very few new references that provided
additional information on characteristics of pygmy-owl habitat. None of
the new biological data contradicted previous studies on the ecology of
the subspecies; however, these studies have refined our understanding
of the pygmy-owl's ecology. The information above summarizes the key
elements of the pygmy-owl's habitat that are pertinent to the
designation of critical habitat. Additional information on the biology
of the pygmy-owl is contained in the ``Primary Constituent Elements''
section of this rule.

Previous Federal Actions

We included the pygmy-owl 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 the pygmy-owl 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 of
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. 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 proposed to list the
pygmy-owl as endangered with critical habitat in Arizona and threatened
in Texas (59 FR 63975; December 12, 1994). After a review of all
comments received in response to the proposed rule, we published a
final rule listing the pygmy-owl as endangered in Arizona (62 FR 10730;
March 10, 1997). In that final rule we determined that listing in Texas
was not warranted and that critical habitat designation for the Arizona
population was not prudent.
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 for failure to designate
critical habitat for the pygmy-owl and a 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
that, along with subsequent clarification from the Court, required
proposal of critical habitat by December 25, 1998, followed by a final
determination 6 months later.
In September 1998, we appointed the Cactus Ferruginous Pygmy-owl
Recovery Team (Recovery Team),

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comprised of biologists (pygmy-owl experts and raptor ecologists) and
representatives from affected and interested parties (i.e., Federal and
State agencies, local governments, the Tohono O'odham Nation, and
private groups).
On December 30, 1998, we proposed to designate 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 18596). On July 12, 1999,
we published our final critical habitat determination (64 FR 37419),
essentially designating the same areas as were proposed.
On January 9, 2001, a coalition of plaintiffs filed a lawsuit with
the District Court of Arizona challenging the validity of the Service's
listing of the Arizona population of the pygmy-owl as an endangered
species and the designation of its critical habitat. On September 21,
2001, the Court upheld the listing of the pygmy-owl in Arizona but, at
our request, and without otherwise ruling on the critical habitat
issues, remanded the designation of critical habitat for preparation of
a new analysis of the economic and other effects of the designation
(National Association of Home Builders et al. v. Norton, Civ.-00-0903-
PHX-SRB). The Court also vacated the critical habitat designation
during the remand. Subsequently the court ordered that we submit the
proposed rule to the Federal Register on or before November 15, 2002,
and that we must issue a final rule by July 31, 2003. The plaintiff's
appeal of the listing decision is still pending.

Draft Recovery Plan

Restoring an endangered or threatened species to the point where it
is recovered is a primary goal of our Endangered Species Program. To
help guide the recovery effort, we prepare recovery plans for most of
the listed species native to the United States. Recovery plans describe
actions considered necessary for conservation of the species, establish
criteria for downlisting or delisting them, and estimate time and cost
for implementing the recovery measures needed. A final recovery plan
formalizes the recovery strategy for a species, but is not a regulatory
document (i.e., recovery plans are advisory documents because there are
no specific protections, prohibitions, or requirements afforded to a
species based solely on a recovery plan).
In September 2002, the Recovery Team developed a proposal for the
current draft of the recovery plan which outlines a recommended
recovery strategy for the pygmy-owl. We reviewed and considered the
pertinent information contained in the current draft recovery plan in
developing this proposed critical habitat designation because it
represents the best scientific data available to us. We are required to
base listing and critical habitat decisions on the best scientific and
commercial data available at the time (16 U.S.C. Sec. 1533(b)(1)(A)).
We may not delay making our determinations until more information is
available, nor can we be required to gather more information before
making our determination (Southwest Center for Biological Diversity v.
Babbitt, 215 F. 3d 58 (D.C. Cir. 2000)). This proposal relies upon the
best scientific and commercial data available to us including the
biological and habitat information described in the draft recovery
plan, and recognized principles of conservation biology. However, the
proposed designation does not include all areas which are identified in
the draft recovery plan. Instead this proposed critical habitat
designation includes only those areas that we consider essential to the
conservation of the species.

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.
Regulations at 50 CFR 424.12(e) further state that areas outside the
geographical area presently occupied by the species will only be
designated if presently occupied areas are insufficient to ensure the
conservation of the species. The term ``conservation,'' as defined in
section 3(3) of the Act and in 50 CFR 424.02(c), means ``to use and the
use of all methods and procedures which are necessary to bring any
endangered species or threatened species to the point at which the
measures provided pursuant to this Act are no longer necessary'' (i.e.,
the species is recovered and removed from the list of endangered and
threatened species).
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.
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. Where Federal agency
action is involved, such as in permitting or funding, critical habitat
designation can affect private landowners, State, or Tribal activities.
Aside from the added protection provided under section 7, the Act does
not provide other forms of protection to lands designated as critical
habitat.
Areas outside the critical habitat designation have been, and will
continue to be, subject to conservation actions that may be implemented
under section 7(a)(1), the species' regulatory protections afforded by
the section 7(a)(2) jeopardy standard (see ``Effects of Critical
Habitat Designation'' section below), and the section 9 take
prohibition. Federally funded, permitted or implemented projects
affecting listed species outside their designated critical habitat
areas may still result in jeopardy findings in some cases. Similarly,
critical habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans
(HCPs) under section 10 of the Act, or other species conservation
planning efforts if new information available to these planning efforts
calls for a different outcome.

Methods

In determining areas that are essential for the conservation of the
pygmy-owl in Arizona, we used the best scientific information
available. This information includes habitat descriptions and pygmy-owl
life history information including: Abbate et al. 1999, 2000, Cartron
and Finch 2000, Proudfoot and Johnson 2000, Wilcox, et al. 2000.
Additional information to identify and define specific habitat needs of
pygmy-owls in Arizona has been gathered since our initial critical
habitat designation in 1999, including surveys and research by

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the Arizona Game and Fish Department (AGFD). Data from project
clearance surveys conducted by private consultants were also used to
help in our understanding of pygmy-owl distribution. We also considered
preliminary habitat assessment work which has been initiated in limited
areas of the State, primarily on Bureau of Land Management (BLM) and
U.S. Forest Service (FS) lands, and initial micro-habitat research
studies have been conducted by the AGFD. Unpublished data gathered by
the AGFD with regard to dispersal, numbers, and distribution of pygmy-
owls were also considered.
The number of known pygmy-owls in the State remains relatively few,
and the information base regarding the needs of this species is still
small. This necessitated our reliance on limited information as we
developed this critical habitat proposal. Recent survey data indicate
that the majority of known pygmy-owls in Arizona are found in the
southern portion of its historical range in the State (Abbate et al.
1996, 1999, 2000, AGFD unpubl. data). Specifically, surveys that have
been conducted have produced no recent (since 1997) records of pygmy-
owls in the northern and eastern periphery of the historical range,
such as the riparian habitats along the Gila, San Pedro, and Salt
Rivers, although the survey effort in these areas has not been
extensive nor systematic in nature. Most surveys are conducted for
project-related purposes; therefore, the vast majority of surveys have
occurred in the NW Tucson area where the greatest amount of development
is occurring within the current range of the pygmy-owl.
We reviewed survey information from Arizona and have emphasized
those areas that contain recent (since 1997), verified (per AGFD
recommended criteria) records of pygmy-owls in Arizona. Thus, when we
refer generally to verified sites within the text of this rule, we are
referring to sites documented since 1997. We determined that using
sites documented since 1997 would ensure that this proposed designation
of critical habitat is based on the most recent data that most closely
represents the current status of the pygmy-owl. Survey effort has been
the most consistent and extensive since the listing of the pygmy-owl in
1997. As noted below, a priority action within the draft Recovery Plan
is to provide protection for all verified sites of pygmy-owls in
Arizona since 1993. Our emphasis in protecting recent (since 1997)
verified sites of pygmy-owls is, nonetheless, consistent with the draft
Recovery Plan in that the areas we have proposed for designation also
include those sites where pygmy-owls were documented between 1993 and
1997. In order to maintain genetic and demographic interchange that
will help maintain the viability of what may be a regional
metapopulation of pygmy-owls, we included habitat linkages that allow
movement and dispersal among the areas supporting pygmy-owls. Dispersal
is the straight line distance a juvenile pygmy-owl travels from its
nest to the site where it becomes resident. Finally, we recognize that
maintenance of a viable pygmy-owl population in Arizona is likely
dependent upon immigration from the population in Sonora, Mexico, and
that maintaining habitat through which pygmy-owls can move between
Mexico and the northern portion of the Arizona range is essential to
the Arizona population's conservation.
This critical habitat proposal includes four of the five areas
recommended by the Recovery Team as Special Management Areas (SMAs).
The fifth SMA was not included based on the lack of recent verified
pygmy-owl locations in that area, our inability to determine if the SMA
included the primary constituent elements described in this rule, and
the Recovery Team's description of this area as needing further
investigation to confirm its role in recovery. SMAs are those portions
of certain Recovery Areas (Recovery Areas 1, 2, and 3) that the
Recovery Team recommended, and we concur, as needing special management
based primarily on imminent and significant threats, but also on
occupancy by owls and habitat function (nesting, dispersal, etc.). The
defining characteristics of the SMAs, i.e., they provide some necessary
function for pygmy-owls and are under imminent and significant threats,
indicate that regulation may play an important role in the conservation
of these areas. Any portion of an SMA that is included in this
proposal, but does not contain the primary constituent elements, is
excluded from critical habitat by definition.
Generally, the proposed system of critical habitat was developed
based on recent, verified owl sites, the presence of areas that are
below 1,200 m (4,000 ft) and include one or more of the primary
constituent elements related to vegetation (see discussion below), the
average straight-line dispersal distance (8 km (5 mi)) from nest sites
(AGFD unpubl. data), and the SMAs described above. The average
dispersal distance was used to define the area that is likely to be
necessary for the maintenance of existing breeding locations through
mate replacement and reoccupation of sites through dispersal. The
average dispersal distance is a measure of central tendency which
increases the likelihood that the area will actually be used by
dispersing juvenile pygmy-owls, unlike the maximum or minimum distances
which are extremes and more likely to be chance events. In addition,
most (10 out of 16) measured dispersal distances were below the
average, indicating that using the average dispersal distance accounts
for the distance documented as typically being used by dispersing
pygmy-owls (AGFD unpubl. data). Areas proposed for connectivity that
fall outside the average dispersal distance are still essential for
pygmy-owls and could potentially be used for dispersal as all proposed
areas of critical habitat also fall within the maximum dispersal
distance 34.8 km (21.8 mi) from recent, verified owl locations and are
considered occupied as described below.
We have proposed an interconnected system of habitat linkages. All
proposed Critical Habitat Units (CHUs) support nesting and dispersal
habitat or are within documented pygmy-owl dispersal distances, and
thus are likely to be used by dispersing pygmy-owls during certain
seasons or years. Because the areas included in this proposal are
likely to be used by pygmy-owls for breeding, feeding, sheltering, or
dispersing, we considered them to be within the geographic area
occupied by the species. As with other raptor species (Call 1979),
pygmy-owl nest sites and occupied territories can vary from year to
year over the landscape, as well as within a pygmy-owl's home range
(Abbate 1999, 2000, AGFD unpubl. data). Information on raptors
indicates that it is not uncommon for sites to be occupied, become
vacant, and then be reoccupied over time (Woodbridge and Detrich 1994,
Reynolds et al. 1994). Therefore, although a specific site may be
unoccupied at one point in time, it may be occupied at a different
point in time, particularly given that all the areas proposed as
critical habitat are below 1,200 m (4,000 ft) and include one or more
of the primary constituent elements related to vegetation, except for
the few locations without primary constituent elements that we were
unable to exclude explicitly due to mapping constraints.
Habitat linkages within the historical range of the pygmy-owl in
Arizona can play a pivotal role in maintaining this potential Arizona
metapopulation, especially since the pygmy-owl is capable of dispersal
up to 34.8 km (21.8 mi) (AGFD unpubl. data). We believe that habitat
linkages will provide connections for the movement of

[[Page 71036]]

dispersing pygmy-owls among local groups of pygmy-owls on the Tohono
O'odham Nation, in the Altar Valley, on Organ Pipe Cactus National
Monument, in northwest Tucson, and in Pinal County. We also believe
that this interconnected matrix will allow the potential immigration of
pygmy-owls from Mexico to help maintain the Arizona population.
Although habitat that allows for dispersal may be marginal for nesting,
we believe it can provide roosting, perching, foraging, and predator
avoidance habitat and maintains an important linkage function among
blocks of nesting habitat both within local groups of pygmy-owls and
throughout the overall range of the pygmy-owl in Arizona.
Without habitat linkages, the overall population of pygmy-owls in
Arizona has is likely to become fragmented to the extent that
individuals may be unable to disperse and find mates and suitable
blocks of nesting habitat. Additionally, adequate habitat must be
available to allow survival of juvenile pygmy-owls and their
recruitment as breeding adults. We believe this is essential for
maintaining the current population and hope that this approach will
facilitate expansion of local populations. In particular, enlargement
of small, local groups of pygmy-owls by expansion onto adjacent lands
would not only increase the chances of their long-term survival, but
would also improve connectivity among local populations by enhancing
their value as ``stepping stones'' within the distribution of the
overall population. Low population numbers and fragmented habitat
reduce the probability that local groups of pygmy-owls will recolonize
naturally in order to offset population fluctuations and local
population losses, resulting in the extirpation of this distinct
population segment.
As discussed above, the need to connect known pygmy-owl sites and
local populations with each other is necessary to the maintenance of
the overall pygmy-owl population in Arizona. All known recent pygmy-owl
sites and recommended SMAs are included in our proposed critical
habitat designation. We selected connections for these areas based on
our knowledge of the existing habitat and on aerial photography. Some
areas proposed for connectivity fall outside of the 5-mile average
dispersal distance around known pygmy-owl locations. However, these
areas are still likely to be occupied because all areas proposed also
fall within the maximum dispersal distance documented for pygmy-owls in
Arizona (34.8 km (21.8 mi)) (AGFD unpubl. data), substantiating their
potential use by dispersing young from known pygmy-owl sites.
This proposed designation does not include all lands identified as
Recovery Areas in the draft Recovery Plan, nor does it include all
areas previously designated as critical habitat (64 FR 37419; July 12,
1999). Some areas have been added based on pygmy-owl locations
documented since the previous designation. Areas not being proposed for
designation that are identified within the draft recovery plan or that
were included in the previous designation have been excluded based on
the lack of survey and research information sufficient to allow our
determination that they are essential to the conservation of the
species in Arizona. Changes reflected in this proposal as compared to
the previous designation resulted from a refinement of our
understanding of the current numbers and distribution of pygmy-owls. We
are not proposing to include all draft recovery areas nor all areas
from the previous designation because (1) they do not include any
recent, verified locations of pygmy-owls; (2) they do not fall within
the average dispersal distance (8 km (5 mi)) from recent, verified
pygmy-owl locations; (3) the draft recovery plan indicates that some of
these areas are in need of further research (i.e., surveys, habitat
assessment, etc.) and may be used for possible augmentation activities,
not to protect known pygmy-owl sites; (4) they do not provide
connectivity proximate to known pygmy-owl sites or SMAs; and (5) some
of these areas have not been evaluated with regard to current habitat
suitability (i.e., they are not known to contain the primary
constituent elements). This does not mean that these areas are not
possibly beneficial to the species, simply that we could not yet
determine, based on the best available scientific data, that they are
essential for the conservation of the species or in need of special
management and protection. We intend to promote conservation and
recovery of the pygmy-owl in these areas through the use of other tools
which may include the reestablishment of pygmy-owls through a section
10(j) experimental population rule, HCPs, Safe Harbor agreements, and
section 7 consultations under the jeopardy standard, if applicable.
In developing this critical habitat proposal we made an effort to
avoid developed areas such as towns, agricultural lands, and other
areas unlikely to contribute to pygmy-owl conservation. However,
limitations on spatial data (e.g., vegetative and other land-cover
information), plus the difficulty in legally describing particular
patterns of vegetation, precluded us from mapping critical habitat in
sufficient detail to exclude all such areas. Therefore, the 1,208,001
acres within the boundaries does not represent critical habitat
acreage; only areas within the geographic boundaries that are below
1,200 m (4,000 ft) and include one or more of the primary constituent
elements related to vegetation are actually critical habitat. Thus,
lands without the primary constituent elements are excluded from
proposed critical habitat by definition. However, these lands account
for a very small proportion of the total proposed designated area. We
request that peer reviewers who are familiar with this species review
the proposed rule (see ``Peer Review'' section below) in order to
ensure that we have identified those areas that are essential for the
conservation of the pygmy-owl, and avoided designating unsuitable
habitat inappropriately.

Primary Constituent Elements

In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR Sec. 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, within areas
currently occupied by the species, that may require special management
considerations or protection. These generally include, but are not
limited to, the following: space for individual and population growth,
and for normal behavior; food, water, or other nutritional or
physiological requirements; cover or shelter; sites for breeding,
reproduction, or rearing of offspring; and habitats that are protected
from disturbance or are representative of the historical geographical
and ecological distributions of a species.
The specific primary constituent elements required for pygmy-owl
habitat are derived from the biological needs of the pygmy-owl as
described below.

Space for Individual and Population Growth and Normal Behavior

As described previously, pygmy-owls were recorded in association
with riparian woodlands in central and southern Arizona (Bendire 1892,
Gilman 1909, Johnson et al. 1987) and are currently found in a variety
of vegetation communities such as riparian woodlands, mesquite bosques,
Sonoran desertscrub, semidesert grassland, mesquite grasslands and
Sonoran savanna grassland communities (see

[[Page 71037]]

Brown 1994 for vegetation community descriptions).
During the 1990s, nesting pygmy-owls were recorded in the Arizona
upland subdivision of the Sonoran desert, particularly Sonoran
desertscrub, and semidesert grasslands (Brown 1994), primarily below
1,220 m (4,000 ft.) elevation (Wilcox et al. 2000). While pygmy-owls
will use the upland areas, xeroriparian areas (dry washes) within these
vegetative communities appear to be especially important (Wilcox et al.
2000). Sonoran desertscrub communities are characterized by the
presence of a variety of cacti, large trees, shrubs, and a diversity of
plant species and vegetation layers. This community includes, but is
not limited to, palo verde (Cercidium spp.), ironwood (Olneya tesota),
mesquite, acacia (Acacia spp.), bursage (Ambrosia spp.), desert
hackberry (Celtis pallida), gray thorn (Zizyphus obtusifolia), and
columnar cacti such as saguaro and organ pipe (Gilman 1909, Bent 1938,
van Rossem 1945, Phillips et al. 1964, Monson and Phillips 1981, Davis
and Russell 1984, Johnson and Haight 1985, Johnson-Duncan et al. 1988,
Johnsgard 1988, Millsap and Johnson 1988).
Certain areas within the Altar Valley were historically Sonoran
savanna grassland; however, with the invasion of mesquite, these areas
are now more properly classified as Sonoran desertscrub (Brown 1994).
The Altar Valley has also been described as semidesert grassland and/or
a mesquite grassland biotic community with Sonoran desertscrub in the
foothill areas (Abbate et al. 1999, Wilcox et al. 2000). We, therefore,
include all three of these grassland communities in our description of
pygmy-owl habitat because they now contain the apparent habitat
requirements needed by pygmy-owls.
Xeroriparian areas are utilized by pygmy-owls in desertscrub and
grassland vegetation communities. Pygmy-owls have been documented using
xeroriparian drainages for nesting and dispersal (Wilcox et al. 2000).
Drainages throughout these areas concentrate available moisture
influencing the diversity and structure of the vegetation. Grasslands
have experienced the invasion of velvet mesquite in the uplands, and
there are linear woodlands of various tree species (ash, hackberry,
mesquite, etc.) along lowland areas and washes. In desertscrub
communities, xeroriparian sites are characterized by species found in
the uplands (palo verde, mesquite, acacia, ironwood, etc.) but
typically grow bigger and occur in higher densities within the
drainages.
Pygmy-owls are considered non-migratory throughout their range.
There are winter (November through January) pygmy-owl location records
in 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 in the Tucson area on January 8, 1953 (University
of Arizona 1995). Similarly, records exist from Sabino Canyon on
December 3, 1941, and December 25, 1950 (U.S. Forest Service, unpubl.
data). Research and monitoring conducted by AGFD has documented year-
round occupancy of known home ranges (the area used by pygmy-owls
throughout the year) (Abbate et al. 1999, 2000). 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. Therefore, it is important that pygmy-owls have home
ranges of adequate size to provide for their life history requirements
throughout the entire year.
Pygmy-owl dispersal patterns are just beginning to be documented.
One banded juvenile in Arizona was observed in 1998 approximately 3.9
km (2.4 mi) from its nest site following dispersal. Five young
monitored with radio telemetry during 1998 were recorded dispersing
from 3.5 km (2.17 mi) to 10.4 km (6.5 mi) for an average of 5.9 km (3.6
mi) (Abbate et al. 1999). In 1999, 6 juveniles in Arizona dispersed
from 2.3 km (1.4 mi) to 20.7 km (12.9 mi) for an average of 10 km (6.2
mi) (Abbate et al. 2000). In Arizona, the maximum documented dispersal
distance is 34.8 km (21.8 mi) (AGFD unpubl. data). Juveniles typically
disperse from natal areas in July and August and do not appear to
defend a territory until September. They appear to fly from tree to
tree instead of long flights and may move up to 1.6 km (1 mi) or more
in a night (Abbate et al. 1999). Trees of appropriate size and spacing
appear to be necessary for successful dispersal, but specific data
describing this pattern are currently unavailable. Once dispersing male
pygmy-owls settle in a territory (the area defended by a pygmy-owl),
they rarely make additional movements outside of their home range. For
example, spring surveys have found male juveniles in the same general
location as observed the preceding autumn (Abbate et al. 2000).
However, unpaired female dispersers may make additional movements into
the subsequent breeding season (AGFD unpubl. data).
Pygmy-owls typically make short, rapid flights. Observations
indicate that pygmy-owls rarely fly longer distances than what is
needed to travel from one tree to an adjacent tree (Abbate et al. 1999,
2000, AGFD unpubl. data). Pygmy-owls will avoid flying across large
open areas such as golf courses (Abbate et al. 1999, 2000). Pygmy-owls
have rarely been observed using areas of high human activity, such as
high-density (4-5 houses/ac) housing, for normal day-to-day activities
within a home range, nor during dispersal (AGFD unpubl. data).
Successful dispersal is dependent on habitats in an appropriate
configuration that are protected from disturbance.
Sufficient space must occur within pygmy-owl home ranges to provide
vegetation of appropriate size and cover for roosting, sheltering, and
foraging. The area must be adequate to provide for the needs of the
pygmy-owl on a year-round basis. Population growth can only occur if
there is adequate habitat in an appropriate configuration to allow for
the dispersal of pygmy-owls across the landscape. Dispersal habitat
should provide sufficient cover in an appropriate configuration to
facilitate movement and reduce mortality factors (predators, prey
availability, human-related factors, etc.).

Food

Pygmy-owls typically hunt from perches in trees with dense foliage
using a perch-and-wait strategy; therefore, sufficient cover must be
present within their home range for them to successfully hunt and
survive. Pygmy-owls also hunt by inspecting tree and saguaro cavities
for other nesting birds, and possibly bats. Their diverse diet includes
birds, lizards, insects, and small mammals (Bendire 1888, Sutton 1951,
Sprunt 1955, Earhart and Johnson 1970, Oberholser 1974, Proudfoot 1996,
Abbate et al. 1996,1999). Observations in Arizona from 1996 through
1998 indicate that reptiles, birds, mammals, and insects were 44, 23,
6, and 3 percent, respectively, of pygmy-owl prey deliveries recorded;
24 percent were unidentified (Abbate et al. 1999). It is likely that
use of insects was underestimated in these observations because of the
speed at which they are consumed and the difficulty in observing such
small prey items. The density of annual plants and grasses, as well as
shrubs, may be important to enhancing the pygmy-owl's prey base.
Vegetation communities which provide a diversity of structural
layers

[[Page 71038]]

and plant species likely contribute to the availability of prey for
pygmy-owls (Wilcox et al. 2000). Pygmy-owls also utilize different
groups of prey species on a seasonal basis. For example, lizards, small
mammals, and insects are utilized as available during the spring and
summer during periods of warm temperatures (Abbate et al. 1999).
However, during winter months, when low temperatures reduce the
activity by these prey groups, pygmy-owls likely turn to birds as their
primary source of food and appear to expand their use area in response
to reduced prey availability (Proudfoot 1996). Therefore, conservation
of the pygmy-owl should include consideration of the habitat needs of
prey species, including structural and species diversity and seasonal
availability. Pygmy-owl habitat must provide sufficient prey base and
cover from which to hunt in an appropriate configuration and proximity
to nest and roost sites.

Water

Free-standing water does not appear to be necessary for the
survival of pygmy-owls. During many hours of research monitoring,
pygmy-owls have never been observed directly drinking water (Abbate et
al. 1999, AGFD unpubl. data). It is likely that pygmy-owls meet much of
their biological water requirements through the prey they consume.
However, the presence of water may provide related benefits to pygmy-
owls. The availability of water may contribute to improved vegetation
structure and diversity which improves cover availability. The presence
of water also likely attracts potential prey species improving prey
availability.

Reproduction and Rearing of Offspring

Male pygmy-owls establish territories using territorial-
advertisement calls to repel neighboring males and attract females.
Usually, pygmy-owls nest as yearlings (Abbate et al. 1999, Gryimek
1972), and both sexes breed annually thereafter. Territories normally
contain several potential nest-roost cavities from which responding
females select a nest. Hence, cavities/acre may be a fundamental
criteria for habitat selection. Historically, pygmy-owls in Arizona
used cavities in cottonwood, mesquite, ash trees, and saguaro cacti for
nest sites (Millsap and Johnson 1988). Recent information from Arizona
indicates nests were located in cavities in saguaro cacti for all but
two of the known nests documented from 1996 to 2002 (Abbate et al.
1996, 1999, 2000, AGFD unpubl. data). One nest in an ash tree and one
in a eucalyptus tree were the only non-saguaro nest sites (Abbate et
al. 2000).
Pygmy-owls exhibit a high degree of site fidelity once territories
(the area defended) and home ranges (the area used throughout the year)
have been established (AGFD unpubl. data). Therefore, it is important
that habitat characteristics within territories and home ranges be
maintained over time in order for them to remain suitable. This is
important for established owl sites, as well as new sites established
by dispersing pygmy-owls.
Shrubs and large trees also provide protection against predators
for juvenile and adult pygmy-owls and cover from which they may capture
prey (Wilcox et al. 2000). Little is known about the rate or causes of
mortality in pygmy-owls; however, they are susceptible to predation
from a wide variety of species. Documented and suspected pygmy-owl
predators include great horned owls (Bubo virginianus), Harris' hawks
(Parabuteo unicinctus), Cooper's hawks (Accipiter cooperii), screech-
owls (Otus kennicottii), and domestic cats (Felis catus) (Abbate et al.
2000, AGFD unpubl. data). Pygmy-owls may be particularly vulnerable to
predation and other threats during and shortly after fledging (Abbate
et al. 1999). Arizona Game and Fish Department (AGFD) telemetry
monitoring in 2002 indicated at least three of the nine young were
killed by predators prior to dispersal during a year when tree species
failed to leaf out due to drought conditions (AGFD unpubl. data).
Therefore, cover near nest sites may be important for young to fledge
successfully (Wilcox et al. 1999, Wilcox et al. 2000). A number of
fledgling pygmy-owls have perished after being impaled on cholla
cactus, probably due to undeveloped flight skills (Abbate et al. 1999).
Conditions which promote the proliferation of cholla (overgrazing,
vegetation disturbance, etc.) may contribute to this mortality factor.
Habitat that provides for successful reproduction and rearing of young
provides trees and cacti that are of adequate size to provide cavities
in proximity to foraging, roosting, sheltering and dispersal habitats,
in addition to adequate cover for protection from climatic elements and
predators in an appropriate configuration in relation to the nest site.
The primary constituent elements determined necessary for the
conservation of the pygmy-owl include: (1) Elevations below 1,200 m
(4,000 ft) within the biotic communities of Sonoran riparian deciduous
woodlands; Sonoran riparian scrubland; mesquite bosques; xeroriparian
communities; tree-lined drainages in semidesert, Sonoran savanna, and
mesquite grasslands; and the Arizona Upland and Lower Colorado River
subdivisions of Sonoran desertscrub (see Brown 1994 for a description
of vegetation communities); (2) nesting cavities located in trees
including, but not limited to cottonwood, willow, ash, mesquite, palo
verde, ironwood, and hackberry with a trunk diameter of 15 cm (6 in) or
greater measured 1.4 m (4.5 ft) from the ground, or large columnar
cactus such as saguaro or organ pipe greater than 2.4 m (8 ft); (3)
multilayered vegetation (presence of canopy, mid-story, and ground
cover) provided by trees and cacti in association with shrubs such as
acacia, prickly pear, desert hackberry, graythorn, etc., and ground
cover such as triangle-leaf bursage, burro weed, grasses, or annual
plants. By way of description, preliminary data gathered by AGFD
indicates 35 percent ground cover at perch sites and 48 percent ground
cover at nest sites; mid-story cover of 65 percent at perch sites and
65 percent at nest sites; and 73 percent canopy cover at perch sites
and 87 percent canopy cover at nest sites (Wilcox et al. 1999) (This
AGFD information is based on a limited study area, a small sample size,
and methods used to describe microhabitat characteristics and may have
only limited applicability in project evaluation); (4) vegetation
providing mid-story and canopy level cover (this is provided primarily
by trees greater than 2 m (6 ft) in height) in a configuration and
density compatible with pygmy-owl flight and dispersal behaviors.
Within 15-m radius plots centered on nests and perch sites, AGFD has
documented the mean number of trees and average height of trees for
Sonoran desertscrub and semidesert grassland areas. The mean number of
trees per plot in Sonoran desertscrub plots was 12.5 with a mean height
of 3.95 m. The mean number of trees in semidesert grassland was 28.5
with a mean height of 8.1 m (Wilcox et al. 2000) (This AGFD information
is based on a small sample size using a method designed to describe
microhabitat characteristics. These numbers may have only limited
applicability in project evaluations); and (5) habitat elements
configured and human activity levels minimized so that unimpeded use,
based on pygmy-owl behavioral patterns (typical flight distances,
activity level tolerance, etc.), can occur during dispersal and within
home ranges (the total area used on an annual basis).
We determined that these proposed primary constituent elements of
critical

[[Page 71039]]

habitat provide for the physiological, behavioral, and ecological
requirements of the pygmy-owl. The first primary constituent element
provides the general biotic communities which are known to support
pygmy-owl habitat in Arizona. We conclude that this element is
essential to the conservation of the pygmy-owl because the species is
not known to occur outside of these biotic communities.
The second primary constituent element provides the components
necessary for nesting, such as cavity availability and cover. The third
primary constituent element describes the structural makeup of habitat
necessary to meet the biological needs of the pygmy-owl such as
breeding, nesting, roosting, perching, foraging, predator avoidance,
and thermal cover, and also promotes prey diversity and availability.
The fourth primary constituent element describes the structural
makeup of vegetation necessary to meet the biological needs of the
pygmy-owl related to movements and dispersal. This includes small-scale
movements for foraging, defense, predator avoidance, pair formation,
nest site selection, etc., as well as landscape level movements needed
to promote genetic diversity and expansion of the population.
The fifth constituent element describes landscape conditions which
may affect pygmy-owl behavioral patterns and relates to the need to
protect habitats from various disturbances. Pygmy-owl behavior is not
typically affected by low levels of human activity or activities which
are predictable (Abbate et al. 1999, 2000, AGFD unpubl. data). Low-
density (< 3 houses per acre) residential areas and roads with low
traffic volumes are examples of this type of activity. However, high
levels of human activities, high-intensity activities, or activities
which cannot be predicted may affect the areas pygmy-owls will use for
nesting, foraging and dispersal (AGFD unpubl. data). High-density
( 3 houses per acre) residential, commercial areas with
lights and constant high levels of activity or unpredictable activities
of any level, ball fields, and roads with high traffic volumes are some
examples of activity levels that could potentially affect pygmy-owl
behavior and habitat use. Habitat elements should be configured, and
human activities should be minimized, so dispersal and pygmy-owl
activities within its home range are not impeded.
We did not map critical habitat in sufficient detail to exclude all
developed areas and other lands unlikely to contain primary constituent
elements essential for pygmy-owl conservation. Within the proposed
critical habitat boundaries, only lands containing some or all of the
primary constituent elements (defined above) are proposed as critical
habitat. Existing features and structures within proposed critical
habitat, such as buildings; roads; residential landscaping (e.g., mowed
nonnative ornamental grasses); residential, commercial, and industrial
developments; and lands above 1,200 m (4,000 ft) do not contain some or
all of the primary constituent elements. Therefore, these areas are not
considered critical habitat and are specifically excluded by
definition.
Facilitating the movement of juvenile pygmy-owls to establish
breeding sites, as well as movements among currently known local
populations of pygmy-owls, is important for dispersal and gene flow,
and providing such connectivity is a widely accepted principle of
conservation biology. Thus, portions of CHUs may function primarily to
provide such connectivity within and among CHUs and may contain only
the primary constituent elements required for dispersal, but we
recognize the essential nature of such connectivity to the persistence
of pygmy-owls in Arizona.
We are soliciting public comments, information, or data which will
help us evaluate whether the areas we have proposed are essential for
the conservation of the pygmy-owl. We seek public comment on all areas
within the pygmy-owl's current and historical range in Arizona,
including whether any of these or other areas should be included or
excluded from the final designation. As stated previously, if new
information indicates that proposed CHUs are inappropriate or that
there are additional areas that are essential for the conservation of
the species in Arizona, we could revise the designation of critical
habitat as appropriate (50 CFR 424.12(g)). The addition of any new
areas to the current proposal will require us to start the proposal
process again by publishing a new proposed rule and obtaining public
comment before making a final determination.

Proposed Critical Habitat

The proposed CHUs encompass all of the verified, recent sites
occupied by pygmy-owls in Arizona, with the exception of pygmy-owls
located on the Tohono O'odham Nation (see ``Exclusions Under Section
4(b)(2)'' section of this rule). Each CHU contains recent documented
occurrences of pygmy-owls. The CHUs were configured by evaluating
topography, vegetation, and our current understanding of pygmy-owl
habitat suitability and dispersal capabilities to select areas that
form an interconnected system of habitat supported by the principles of
conservation biology. New pygmy-owls continue to be found each year
within the proposed CHUs. Consequently, we believe that continued
surveys will detect additional sites occupied by pygmy-owls within
these proposed CHUs.
Table 1 presents a comparison of the 1999 designation of pygmy-owl
critical habitat and our current proposal. A brief summary of changes
to the initial designation are included. Table 2 shows the approximate
acreage of proposed critical habitat by land ownership and county.
Areas in Pima and Pinal Counties, Arizona, that are proposed as
critical habitat have been divided into CHUs (see maps in the ``Rule
Promulgation'' section). Critical habitat for the pygmy-owl includes
habitat within the CHUs which contain areas that are below 1,200 m
(4,000 ft) and include one or more of the primary constituent elements
related to vegetation, as described above. A brief description of each
CHU and our reasons for proposing those areas as critical habitat are
presented below.

[[Page 71040]]

Table 1.--Comparison of the 1999 Critical Habitat Designation With the Current Proposal
----------------------------------------------------------------------------------------------------------------
Former designation (64 FR 37419) Current proposal
----------------------------------------------------------------------------------------------------------------
Unit Acres Description Unit Acres Description
----------------------------------------------------------------------------------------------------------------
1.............................. 159,811 Extended from the 1................. 435,464 Extends eastward
Mexican border to include the
northward between Buenos Aires NWR
the Buenos Aires and recent owl
National Wildlife locations;
Refuge (NWR) and northward to
the Tohono include recent
O'odham Nation, owl sites and
but did not habitat for
include the dispersal
Buenos Aires NWR.
2, 3........................... 47,678 Strip of potential 2................. 179,805 Includes the
habitat that former Unit 3
connected the and extends
Tohono O'odham northward to
Nation to Saguaro provide for
National Park- enhanced
West and Tucson connectivity
Mountain County facilitating
Park. Unit 3 was movement between
a very small unit southern Pinal
designed to Co., the Tucson
provide area, and
connectivity occupied areas
across I-10. to the south and
west. Saguaro
National Park-
West was added.
4.............................. 87,352 Unit 4 included 3................. 73,958 This unit is
occupied habitat based on recent
in the Tucson owl locations,
area, which was average
then the most dispersal
dense pygmy-owl distance, and
concentration the Northwest
known in the Tucson and
State. Tortolita Fan
SMAs proposed in
the draft
Recovery Plan.
5a, 5b......................... 211,354 Designated to 4................. 76,161 Much of this unit
provide is not being
connectivity to proposed. The
the riparian remaining
habitat of the portions are
Gila and San designated
Pedro Rivers around recent
north and pygmy-owl
northeast of locations to
Tucson. provide for the
expansion of
this
subpopulation
(see ``Methods''
section).
6.............................. 133,351 Encompassed the None.............. ......... This unit is not
riparian habitats being proposed
of the Gila and for designation
San Pedro Rivers. based on the
lack of recent,
verified
locations and
our inability to
determine the
presence of the
primary
constituent

elements (see
``Methods''
section).
7.............................. 99,542 Connected from None.............. ......... This unit is not
unit 5a northward being proposed
to and including for designation
the riparian based on the
habitat of the lack of recent,
Salt River. verified
locations and
our inability to
determine the
presence of the
primary
constituent
elements (see
``Methods''
section).
None........................... ......... This unit was not 5................. 442,612 This unit
previously includes habitat
designated. recently found
to be occupied
in Organ Pipe
Cactus NM, on
Cabeza Prieta
NWR, and on
largely BLM land
around the Ajo
area.
================================
----------------------------------------------------------------------------------------------------------------

Table 2.--Approximate Critical Habitat Acreage by County and Land Ownership \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
State
Unit County FWS BLM NPS trust Private Other \2\ Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................... Pima.......................... 114,490 22,908 0 233,467 63,310 1,289 435,464
2.......................................... Pima.......................... 0 58,189 22,022 25,782 34,967 18,091 159,051
2.......................................... Pinal......................... 0 1,494 0 12,730 6,530 0 20,754
Total......................... 0 59,683 22,022 38,512 41,497 18,091 179,805
3.......................................... Pima.......................... 0 0 0 12,072 21,292 60 33,424
3.......................................... Pinal......................... 0 4,295 0 22,391 13,197 651 40,534
Total......................... 0 4,295 0 34,463 34,489 711 73,958
4.......................................... Pinal......................... 0 29,594 0 41,491 5,076 0 76,161
5.......................................... Pima.......................... 99,446 84,267 255,509 2,638 752 0 442,612
Total......................... 213,936 200,747 277,531 350,572 145,124 20,091 1,208,001

--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Note: acreage estimates are derived from Arizona Land Resource Information System data based on the cited legal descriptions.
\2\ Includes other Federal (BOR, Barry M. Goldwater Range), Military (AZ National Guard), State (AZGFD) and County lands.

.CHU Descriptions

The following includes general descriptions of each proposed CHU,
including general land ownership, geographical extent, dominant
vegetation, general land-use information, and the reason(s) why the
areas were determined to be essential to pygmy-owl conservation in
Arizona. Much of the detail in the following CHU descriptions was taken
from Recovery

[[Page 71041]]

Team documents. Legal descriptions, a general location map, and maps of
individual CHUs are in the ``Regulation Promulgation'' section of this
rule.

CHU 1

CHU 1 extends from the Mexican border northward approximately 80 km
(50 mi) through the Altar Valley along the eastern edge of the Tohono
O'odham Nation. This CHU includes the Buenos Aires National Wildlife
Refuge, as well as BLM, State Trust and private lands to the north.
Numerous washes descend from the Baboquivari Mountains on the west and
the Sierrita and San Luis Mountains to the east. The Altar and Brawley
Washes are important valley wash systems. Vegetation is dominated by
semidesert grassland (also described as Sonoran savanna or mesquite
grassland (Brown 1994)), but also supports Arizona upland Sonoran
desertscrub vegetation, particularly in the northern part of this unit.
Tree species such as mesquite, ash, and hackberry are found in the
drainages of this unit, while grasses, scattered mesquite, and isolated
saguaros are found in the upland areas. Documented pygmy-owl use in
this unit includes both breeding and dispersal. Management issues
primarily relate to grazing and controlled burning, while secondary
issues involve residential and commercial development. Illegal border
crossings and management also impact vegetation and other resources in
this unit.
We determine that this area is essential to pygmy-owl conservation
in Arizona because it contains recent documentation of breeding pygmy-
owl locations and a number of pygmy-owls with unknown breeding status.
Since 1999, this unit has accounted for approximately 43 percent of the
known pygmy-owls in Arizona (Harris Environmental Group 1998, Flesch
1999, Abbate et al. 2000, AGFD unpubl. data). In addition, the CHU is
contiguous with the Tohono O'odham Nation, which provides important
connectivity to the west and south and may support breeding pygmy-owls.
Finally, the area provides connectivity between the pygmy-owls in
Mexico and the Tohono O'odham Nation with those in the Tucson area (CHU
2 and 3). CHU 1 contains all of the described primary constituent
elements, and its primary functions are to provide nesting
opportunities and connectivity for dispersal.

CHU 2

This CHU is connected to the northern portion of CHU 1 and the
Tohono O'odham Nation, providing connectivity and dispersal corridors
between populations of pygmy-owls in CHUs 1 and 3. This CHU includes
the western unit of Saguaro National Park and Pima County's Tucson
Mountain Park and extends westward to the Tohono O'odham Nation, then
northward and eastward to Interstate 10 to join CHU 3 at points north
and south. Part of this CHU is within the newly designated Ironwood
Forest National Monument, which is predominantly composed of BLM land
but also includes some State Trust and private lands. Vegetation is
dominated by Arizona upland Sonoran desertscrub and lower Colorado
River Sonoran desertscrub. This unit also includes some lands on which
native trees are returning and provide the described conditions for
connectivity and dispersal (primary constituent element 4). These lands
were previously used for agricultural purposes and have been retired.
Much of CHU 2 is under Federal administration (BLM, Ironwood National
Monument, Saguaro National Park), but there is some State Trust and
private lands, particularly in the northern part of the unit. No single
land use dominates this CHU; mining, agriculture, grazing, development,
and recreation are present. Impacts to pygmy-owl habitat are also
occurring from the constant movement of individuals and groups crossing
the border illegally through this unit.
An important purpose of this CHU is to allow for dispersal and
other movements of pygmy-owls among CHU 1, CHU 3, CHU 4 and the Tohono
O'odham Nation. Movement among these areas is necessary for the
maintenance and expansion of pygmy-owl subpopulations found within
these CHUs. There is a known pygmy-owl site located in the southeastern
portion of this CHU; however, in general there has been a lack of
survey effort in this unit.
We determine that this CHU is essential to pygmy-owl conservation
in Arizona because it provides connectivity between occupied CHUs 1, 3,
4, and the Tohono O'odham Nation. This CHU provides breeding, roosting,
perching, and foraging habitat (constituent elements 1, 2, and 3) and
maintains an important linkage function among blocks of nesting habitat
both locally and over the pygmy-owl's range (constituent element 4)
that is essential to the pygmy-owl's conservation (see discussion
above). Human activities and development are dispersed, and this unit
also contains park lands resulting in conditions associated with
primary constituent element 5. The primary function of this unit is for
connectivity, but may become more important with regard to nesting as
the overall pygmy-owl's population expands.

CHU 3

This CHU lies primarily northeast of Interstate 10 and extends from
northwest Tucson into southern Pinal County. The boundaries of this
unit are based on the recommended Northwest Tucson and Tortolita Fan
SMAs found in the draft pygmy-owl recovery plan. The dominant
vegetation is Arizona upland Sonoran desertscrub, and the area contains
stands of trees including ironwood, mesquite, palo verde, and other
species important for pygmy-owl roosting, perching, foraging and
predator avoidance (primary constituent elements 1, 3 and 4). Saguaros
occur in relatively high densities and are used for nesting (primary
constituent element 2). Based on our current understanding, this CHU
includes the most contiguous and highest-quality pygmy-owl habitat in
Arizona (Wilcox et al. 1999, Wilcox et al. 2000). The southern portion
of this CHU is mostly privately owned, the central portion is primarily
State Trust, while the rest of the CHU is a mixture of private, State,
and BLM lands.
This CHU contains a high density of active pygmy-owl nesting
territories and dispersal pathways threatened by existing and on-going
land uses, affecting primary constituent element 5. It has one of the
highest known densities of pygmy-owls in Arizona, and is one of only
four areas in the State with documented breeding pygmy-owls. Since
1999, CHU 3 has accounted for 35 percent of the known pygmy-owls in
Arizona and 40 percent of the known nests (Abbate et al. 1999, 2000,
AGFD unpubl. data). Therefore, the primary purpose of this CHU is to
provide and protect adequate breeding habitat for the maintenance and
expansion of this local population. Dispersal pathways within the
southern portion of this CHU are limited, and so this CHU also protects
remaining areas of connectivity for movement within this CHU and among
adjacent CHUs. Some of the private land within this CHU has been
developed and would not be considered critical habitat if it does not
contain the primary constituent elements. Development pressure
continues to be the main activity affecting conservation of the species
in this CHU. We determine that this CHU remains an essential component
of pygmy-owl conservation because it supports one of the highest
densities of breeding pygmy-owls in Arizona, contributes to recruitment
in the population, contains a significant amount of high-quality
habitat, and provides all of the primary constituent elements.

[[Page 71042]]

CHU 4

This CHU occurs in Pinal County and encompasses the northernmost
extent of this critical habitat proposal, running from the north edge
of CHU 3 northward to an area approximately 14.4 km (9 mi) north of
Park Link Drive. The northern terminus of this CHU was defined by the
average distance juvenile pygmy-owls could disperse from the most
northern of recent pygmy-owl sites (see discussion in ``Methods''
section). Vegetation is almost entirely Arizona upland Sonoran
desertscrub. Grazing, development, and mining exploration have been
identified as management issues affecting the species in this area.
Fires have also contributed to the current vegetation condition
(increases in exotic grasses and reduction of tree canopy) and will
likely remain an issue in this unit into the future. These burned areas
still contain one or more primary constituent elements, but could
benefit from enhancement or special management. CHU 4 is primarily
State Trust and BLM lands, with some scattered private holdings.
This CHU has documented pygmy-owl occupancy (3 sites since 1999
(Abbate et al. 1999, 2000, AGFD unpubl. data.)), primarily within the
southern portions. However, much of the unit has not been surveyed, and
the surveys that have occurred have not been systematic nor regular.
CHU 4 does contain breeding habitat, and we expect an increased survey
effort would reveal more pygmy-owl sites. The primary purposes of this
unit are to maintain and protect occupied sites, provide expanded
opportunities for breeding, and provide connectivity for dispersal
within the unit and to CHU 3. We determine that this area is essential
to the pygmy-owl's conservation in Arizona, as it contains several
known pygmy-owl locations and provides habitat for breeding as well as
for pygmy-owls dispersing within this unit and from the breeding areas
around Tucson. Pygmy-owls have been documented moving between CHUs 3
and 4 over the past few years (Abbate et al. 1999). We determine that
this CHU remains an essential component of pygmy-owl conservation
because it supports breeding pygmy-owls, contributes to recruitment in
the population, contains a significant amount of high-quality habitat,
and provides all of the primary constituent elements.

CHU 5

This CHU runs from the Mexican border northward along the western
edge of the Tohono O'odham Nation. The CHU is almost entirely under
Federal ownership, including portions of Cabeza Prieta National
Wildlife Refuge, Organ Pipe Cactus National Monument, and contiguous
BLM land in the vicinity of the town of Ajo. This unit also contains a
small amount of State Trust land. The area consists of Arizona upland
Sonoran desertscrub and lower Colorado River Sonoran desertscrub.
Recreation-related activities, undocumented alien traffic and
management, and grazing on BLM lands are the primary management issues
in this unit.
This CHU contains numerous pygmy-owl locations, including breeding
sites. Since 1999, this CHU has accounted for approximately 21 percent
of the known pygmy-owls in Arizona (Abbate et al. 1999, 2000, AGFD
unpubl. data). We determine that this CHU is essential to pygmy-owl
conservation, as it provides breeding habitat contiguous with known
pygmy-owls in Mexico and on the Tohono O'odham Nation. The purpose of
this CHU is to protect and maintain known breeding areas, provide
connectivity to Mexico and the Tohono O'odham Nation, and allow for
expansion of this subpopulation through dispersal. Recruitment and
resulting expansion of the population in this area are necessary for
the conservation of the species. CHU 5 contains all of the primary
constituent elements.

Managed Lands

As part of our process of developing this critical habitat
proposal, we evaluated existing management plans to determine whether
they provide sufficient protection and management for the pygmy-owl and
its habitat such that there is no need for additional special
management considerations or protection of areas that otherwise would
qualify as critical habitat. Section 3(5)(i) of the Act defines
critical habitat as areas on which are found those physical or
biological features (I) essential to the conservation of the species
and (II) which may require special management considerations or
protection. Adequate special management or protection is provided by a
legally operative plan that addresses essential habitat and that
provides for the long-term conservation of the species. We consider a
plan adequate when it: (1) Provides a conservation benefit to the
species (i.e., the plan must maintain or provide for an increase in the
species' population, or the enhancement or restoration of its habitat
within the area covered by the plan); (2) provides assurances that the
management plan will be implemented (i.e., those responsible for
implementing the plan are capable of accomplishing the objectives, have
an implementation schedule, and/or adequate funding for the management
plan); and (3) provides assurances the conservation plan will be
effective (i.e., it identifies biological goals, has provisions for
reporting progress, and is of a duration sufficient to implement the
plan and achieve the plan's goals and objectives). If an area provides
physical and biological features essential to the conservation of the
species, and also is covered by a plan that meets these criteria, then
such an area does not constitute critical habitat as defined by the Act
because the primary constituent elements found there are not in need of
special management.
It is possible that some of the areas proposed (e.g., national
parks/monuments) are already under a management plan that will provide
for the long-term conservation of the pygmy-owl. We encourage
landowners to develop and submit management plans and actions that are
consistent with pygmy-owl conservation that we can evaluate and that
may remove the necessity of critical habitat regulation. If any
management plans are submitted during the open comment period, we will
consider whether these plans provide adequate special management or
protection for the species. We will use this information in determining
which, if any, areas should not be included in the final designation of
critical habitat for the pygmy-owl.

Exclusions Under Section 4(b)(2) for Tribal Lands

Section 4(b)(2) of the Act requires us to base critical habitat
designations on the best scientific and commercial data available,
after taking into consideration the economic and any other relevant
impact of specifying any particular area as critical habitat. We may
exclude areas from a critical habitat designation when the benefits of
exclusion outweigh the benefits of designation, provided the exclusion
will not result in the extinction of the species.
As discussed in this rule, we know that pygmy-owls occupy the
Tohono O'odham Nation, but we have no specific information on the
numbers or distribution. There is a considerable amount of unsurveyed
habitat on the Nation and, although we have no means of quantifying
this habitat, the distribution of recent sightings on non-Tribal areas
east, west, and south of the U.S. portion of the Nation lead one to
reasonably conclude that these Tribal lands may support meaningful
numbers of pygmy-owls. Thus, we believe that Nation lands are important
to the

[[Page 71043]]

conservation of the pygmy-owl; however, it would be difficult to
determine which areas on the Nation meet the definition of critical
habitat due to our lack of information on pygmy-owl numbers and
distribution. Based on our analysis below we find that the benefits of
excluding the Nation from the proposed designation of critical habitat
outweigh the benefits of including them. Therefore, we are not
proposing to include the lands of the Nation as critical habitat.

(1) Benefits of Inclusion

We do not believe that designating critical habitat within the
Nation would provide significant additional benefits for the pygmy-owl.
Projects on Nation lands with a Federal nexus (e.g., funded, approved
or carried out by Federal agencies, such as the Bureau of Indian
Affairs, Indian Health Services, or Federal Highways Administration)
will trigger section 7 consultation with us if the projects affect
pygmy-owls, regardless of critical habitat. Most projects of a scale
large enough to impact pygmy-owls will have a Federal nexus. In
addition, we have received from the Tohono O'odham Nation a document
entitled A Conservation Strategy for the Federally Endangered Cactus
Ferruginous pygmy-owl on the Tohono O'odham Nation (Edward D. Manuel,
Tohono O'odham Nation, in litt. 2002) which outlines the general
process by which the Nation and Federal agencies will coordinate to
evaluate and address potential impacts to pygmy-owls related to various
activities on the Nation. While this document is not sufficient to
remove the need for special management (see ``Section 3(5)(A)
Definition'' section above), it does indicate the progress that is
being made through our efforts to coordinate conservation actions on
the Nation and the intent of the Nation to conserve the pygmy-owl.
Because of the extent of the lands within the Nation (approximately
1.2 million ha (3 million ac)) and the low number of people residing in
this area, the scope and types of projects being implemented have had
minimal impacts on the landscape, disturbing less than 300 acres since
September 1999 (E. Manuel, Tohono O'odham Nation, in litt. 2002). We
will continue Government-to-Government consultations with the Tohono
O'odham Nation to address the conservation needs of the pygmy-owl on
Tribal lands.
In summary, because any potential impacts to the pygmy-owl from
future projects will be addressed through the Nation's Conservation
Strategy or through a section 7 consultation with us under the jeopardy
standard, we do not believe a designation of critical habitat would
provide significant additional benefits to the pygmy-owl.

(2) Benefits of Exclusion

Pursuant to Secretarial Order 3206 American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities and the Endangered Species Act,
we recognize that we must carry out our responsibilities under the Act
in a manner that harmonizes the Federal trust responsibility to Tribes
and Tribal sovereignty while striving to ensure that Indian Tribes do
not bear a disproportionate burden for the conservation of listed
species, so as to avoid or minimize the potential for conflict and
confrontation.
In accordance with the Presidential Memorandum of April 29, 1994,
we believe that, to the maximum extent possible, Indian Pueblos and
Tribes should be the governmental entities to manage their lands and
Tribal trust resources. The designation of critical habitat would be
expected to adversely impact our working relationship with the Nation,
and we believe that Federal regulation through critical habitat
designation would be viewed as an unwarranted and unwanted intrusion
into Tribal natural resource programs and may harm our working
relationship with the Nation which has been beneficial in implementing
natural resource programs of mutual interest. For example, on April 28,
1999, the Chairman of the Nation accepted an invitation to partner with
Pima County in developing the Sonoran Desert Conservation Plan.
Representatives from the Nation have participated in the Sonoran Desert
Conservation Plan planning process, including expert committees and
education sessions. Moreover, during 1999, the Service's Region 2
Native American Liaison met with representatives of the Nation to
discuss their relationship with Cabeza Prieta National Wildlife Refuge
and to further discuss a possible joint venture to survey and manage
the pygmy-owl on Nation lands. Representatives from the Nation are
members of both the Implementation and Technical Groups of the Cactus
Ferruginous Pygmy-Owl Recovery Team. We are now meeting with the Nation
on a regular basis to develop a statement of relations and to pursue
the development of a management plan for the natural resources on the
Nation, which would include the pygmy-owl.
Pursuant to Secretarial Order 3206, the Service acknowledges our
unique and distinctive Federal Tribal trust responsibility and
obligation toward the Nation with respect to lands owned and managed by
the Nation, Tribal trust resources, and the exercise of Tribal rights.
Consequently, we are sensitive to the fact that the Tohono O'odham
culture, religion, and spirituality may involve or relate to animals,
including the pygmy-owl. We acknowledge the cultural sensitivity of the
Nation with regard to owls.
We believe the designation of critical habitat on the Tohono
O'odham Nation would adversely impact our working relationship with the
Nation, which has been and is currently beneficial for the conservation
of the pygmy-owl and other natural resource management programs. We
believe, as stated in section 4(b)(2) of the Act, that the benefits to
excluding the Tohono O'odham Nation outweigh the benefits of specifying
this area as critical habitat. We also do not believe this exclusion
will result in extinction of the pygmy-owl because of the limited
threats to pygmy-owls and their habitats, and the initiation of a
conservation program.

Lands Covered Under Existing Habitat Conservation Plans (HCPs)

Section 10(a)(1)(B) of the Act authorizes the Service to issue to
non-Federal entities a permit for the incidental take of endangered and
threatened species. This permit allows a non-Federal landowner to
proceed with an activity that is legal in all other respects, but that
results in the incidental taking of a listed species (i.e., take that
is incidental to, and not the purpose of, the carrying out of an
otherwise lawful activity). The Act specifies that an application for
an incidental take permit must be accompanied by a conservation plan,
and specifies the content of such a plan. The purpose of such a habitat
conservation plan, or HCP, is to describe and ensure that the effects
of the permitted action on covered species are adequately minimized and
mitigated and that the action does not appreciably reduce the survival
and recovery of the species.
Within the range of the pygmy-owl, the Service has approved an HCP
involving the Lazy K Bar Ranch. We evaluated this HCP to determine
whether it: (1) Provides a conservation benefit to the species; (2)
provides assurances that the management plan will be implemented; and
(3) provides assurances the plan will be effective. Approved and
permitted HCPs are designed to ensure the long-term survival of covered
species within the plan area. Where we have an approved HCP, the areas
we ordinarily would designate as critical habitat for the

[[Page 71044]]

covered species will be protected through the terms of the HCPs and
their implementation agreements.
The issuance of a permit (under Section 10(a) of the Act) in
association with an HCP application is subject to consultation under
Section 7(a)(2) of the Act. While these consultations on permit
issuance have not specifically addressed the issue of destruction or
adverse modification of critical habitat for the pygmy-owl, they have
addressed the very similar concept of jeopardy to pygmy-owls in the
plan area. Since this HCP addresses land use within the plan
boundaries, habitat issues within the plan boundaries have been
thoroughly addressed in the HCP and the consultation on the permit
associated with the HCP. Our experience is that, under most
circumstances, consultations under the jeopardy standard will reach the
same result as consultations under the adverse modification standard.
Common to both approaches is an appreciable detrimental effect on both
survival and recovery of a listed species, in the case of critical
habitat by reducing the value of the habitat so designated. Thus,
actions satisfying the standard for adverse modification are nearly
always found to also jeopardize the species concerned, and the
existence of a critical habitat designation does not materially affect
the outcome of consultation. Therefore, additional measures to protect
the habitat from adverse modification are not likely to be required.
We have reviewed the Lazy K Bar Ranch HCP. A summary of our
assessment is as follows:
(1) A current plan or agreement must be complete and provide
sufficient conservation benefit to the species: A habitat conservation
plan was submitted and approved in November 1998 which provides for
continued conservation of the species through the minimization of
habitat destruction (a maximum of 17 percent disturbance), revegetation
(approximately 21 ac), and seasonal restrictions to avoid potential
noise disturbance. These efforts will maintain habitat for breeding and
dispersal, as well as reduce the potential for disturbance during
sensitive seasons of the year.
(2) The plan or agreement must provide assurances that the
conservation management strategies will be implemented: The coverage
provided under this HCP and related 10(a)(1)(B) permit is conditional
upon the implementation of the included terms and conditions. The terms
and conditions are nondiscretionary. Annual reporting is required
showing the results of surveys and cavity inspections, as well as
amount of area graded, plat proposals, and the extent of revegetation
completed.
(3) The plan or agreement must provide assurances that the
conservation management strategies will be effective: Monitoring is a
key component of this habitat conservation plan. Surveys to detect
pygmy-owl presence or absence will be conducted on an annual basis.
Cavity inspections will occur to document the status and occupancy of
potential nesting cavities. The plan provides for the funding and
completion of telemetry studies on any pygmy-owls detected so that the
effects of the project on pygmy-owl habitat use and behavior can be
determined. The success of vegetation salvage and revegetation efforts
will be monitored. Photo documentation will be used to track the
effects to habitat from both development activities and revegetation.
On the basis of this assessment, we have determined that the area
addressed by the Lazy K Bar Ranch HCP does not require additional
special management considerations to conserve the pygmy-owl. Therefore,
the area covered by the existing, legally operative incidental take
permit issued for pygmy-owls under section 10(a)(1)(B) of the Act is,
by definition under Section 3(5)(A) of the Act, not included in this
proposed designation of critical habitat.
Lands within HCPs are subject to disposal (e.g., through sale or
exchange), subject to various sideboards included in each HCP. Proposed
critical habitat does not include non-Federal lands covered by an
incidental take permit for pygmy-owls issued under section 10(a)(1)(B)
of the Act for these HCPs as long as such permit, or a conservation
easement providing comparable conservation benefits, remains legally
operative on such lands.
We also considered exclusion of HCPs under subsection 4(b)(2) of
the Act, which allows us to exclude areas from critical habitat
designation where the benefits of exclusion outweigh the benefits of
designation, provided the exclusion will not result in the extinction
of the species. We believe that in most instances, the benefits of
excluding HCPs from critical habitat designations will outweigh the
benefits of including them. We believe this is the case in relation to
the Lazy K Bar Ranch HCP that addresses pygmy-owls.
The benefits of including HCP lands in critical habitat are
normally nonexistent. The principal benefit of any designated critical
habitat is that activities in such habitat that may affect it require
consultation under section 7 of the Act if such actions involve a
Federal nexus (i.e., an action authorized, funded, or carried out by a
Federal agency). Such consultation would ensure that adequate
protection is provided to avoid adverse modification of critical
habitat. Where HCPs are in place, our experience indicates that this
benefit is small or non-existent.
Further, HCPs typically provide for greater conservation benefits
to a covered species than section 7 consultations because HCPs assure
the long-term protection and management of a covered species and its
habitat. Such assurances are typically not provided by section 7
consultations which, in contrast to HCPs, often do not commit the
project proponent to long-term special management or protections.
The development and implementation of HCPs provide other important
conservation benefits, including the development of biological
information to guide conservation efforts and assist in species
recovery and the creation of innovative solutions to conserve species
while allowing for commercial activity. The educational benefits of
critical habitat, including informing the public of areas that are
important for the long-term survival and conservation of the species,
are essentially the same as those that would occur from the public
notice and comment procedures required to establish an HCP, as well as
the public participation that occurs in the development of many
regional HCPs. For these reasons, then, we believe that designation of
critical habitat normally has little benefit in areas covered by HCPs.
The benefits of excluding HCPs from being designated as critical
habitat include relieving landowners, communities and counties of any
additional regulatory review that results from such a designation. Many
HCPs, particularly large regional HCPs, take many years to develop and,
upon completion, become regional conservation plans that are consistent
with the recovery of covered species. Imposing an additional regulatory
review after HCP completion may jeopardize conservation efforts and
partnerships in many areas and could be viewed as a disincentive to
those developing HCPs.
A related benefit of excluding HCP areas is that it would encourage
the continued development of partnerships with HCP participants,
including States, local governments, conservation organizations, and
private landowners, that together can implement conservation actions we
would be unable to accomplish alone. By excluding areas covered by HCPs
from

[[Page 71045]]

critical habitat designation, we preserve these partnerships and, we
believe, set the stage for more effective conservation actions in the
future.
In general, we believe the benefits of critical habitat designation
to be insignificant in areas covered by approved HCPs. We also believe
that the benefits of excluding HCPs from designation are significant.
Weighing the small benefits of inclusion against the benefits of
exclusion, including the benefits of relieving property owners of an
additional layer of approvals and regulation, together with the
encouragement of conservation partnerships, would generally result in
HCPs being excluded from critical habitat designation under section
4(b)(2) of the Act.

Effects of Critical Habitat Designation

Section 7(a) of the Act requires Federal agencies to evaluate their
actions both 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. 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.
Activities on Federal lands that may affect pygmy-owl critical
habitat will require section 7 consultation. Activities on private or
State lands that are funded, permitted or carried out by a Federal
agency, such as a permit from the U.S. Army Corps of Engineers (Corps)
under section 404 of the Clean Water Act, or a section 402 permit under
the Clean Water Act from the Environmental Protection Agency (EPA),
will be subject to the section 7 consultation process if those actions
may affect critical habitat or a listed species through modification of
suitable habitat. Through this consultation, we would advise agencies
whether the permitted actions would likely jeopardize the continued
existence of the species or adversely modify critical habitat. Federal
actions not affecting critical habitat or otherwise not affecting
pygmy-owls, and actions on non-Federal lands that are not federally
funded, permitted or carried out, will not require section 7
consultation.
We will conduct our analyses regarding the destruction or adverse
modification of critical habitat over the entire critical habitat
designation and on a unit basis, as dictated by conditions within the
unit. A consultation focuses on the entire critical habitat area
designated, unless the critical habitat rule identifies another basis
for analysis, such as discrete units and/or groups of units necessary
for different life-cycle phases, units representing distinctive habitat
characteristics or gene pools, or units fulfilling essential geographic
distribution requirements. In the case of the pygmy-owl, certain CHUs
(e.g., CHU 1 and CHU 3) contain habitat for breeding and dispersal
constrained by existing land uses. In addition, the small population
size and dispersed distribution of the pygmy-owl make local populations
within specific CHUs and the ability to maintain connectivity among
them geographically significant for the maintenance of the overall
Arizona population of pygmy-owls.
When we issue a biological opinion concluding that a project is
likely to result in the destruction or adverse modification of critical
habitat, we also provide reasonable and prudent alternatives to the
project, if any are identifiable. Reasonable and prudent alternatives
are defined at 50 CFR 402.2 as alternative actions identified during
consultation that can be implemented in a manner consistent with the
intended purpose of the action, that are consistent with the scope of
the Federal agency's legal authority and jurisdiction, that are
economically and technologically feasible, and that we believe would
avoid the likelihood of jeopardizing the continued existence of listed
species or the destruction or adverse modification of critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where critical
habitat is subsequently designated and the Federal agency has retained
discretionary involvement or control over the action or such
discretionary involvement or control is authorized by law.
Consequently, some Federal agencies may request reinitiation of
consultation with us for actions for which formal consultation has been
completed, if those actions may affect proposed or designated critical
habitat.
Section 4(b)(8) of the Act requires that we 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 the conservation of the species
is appreciably diminished. We note that such activities may include,
but are not limited to:
(1) Activities such as clearing of vegetation that appreciably
reduce the value of the critical habitat for breeding;
(2) Activities such as clearing vegetation, road-building, or
recreation that appreciably reduce the value of the critical habitat
for connectivity;
(3) Activities such as clearing of vegetation, water diversion or
impoundment, or high-impact recreation that appreciably reduce the
value of the critical habitat for feeding by pygmy-owls;
(4) Activities that appreciably reduce the value of the critical
habitat for other biological purposes (e.g., roosting, rearing, or
other normal behavior patterns).
The following federally funded programs and actions that may be
affected by the proposed designation of critical habitat include, but
are not limited to:
(1) Funding or approval of road development, realignment, widening,
or maintenance by the Federal Highway Administration resulting in the
significant loss or degradation of the primary constituent elements;
(2) Funding of housing development by the Federal Housing
Administration, Veteran's Administration, Small Business Administration
or Department of Housing and Urban Development resulting in the
significant loss or degradation of the primary constituent elements;
(3) Approval of structures and distribution for energy,
communication, and other utilities by the Federal Energy Regulatory
Commission or the Federal Communications Commission resulting in the
loss or degradation of the primary constituent elements;
(4) Approval of actions related to grazing, mining, recreation, and
land planning by the Bureau of Land Management, U.S. Forest Service,
and National Park Service that result in a significant loss or
degradation of the primary constituent elements;
(5) Approval of structures or actions by the Bureau of Reclamation
related to the management of waterways or

[[Page 71046]]

floodways that result in a significant loss or degradation of the
primary constituent elements; and
(6) Approval of permits or actions related to the Clean Water Act
by the Environmental Protection Agency or Corps that result in the
significant loss or degradation of the primary constituent elements.
The Act and 50 CFR 17.22 also provide for the issuance of permits
to carry out otherwise prohibited activities involving endangered
animal species under certain circumstances. Such permits are available
for scientific purposes, to enhance the propagation or survival of the
species, and for incidental take in connection with otherwise lawful
activities.
If you have questions regarding whether specific activities may
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
Service, Branch of Endangered Species/Permits, P.O. Box 1306,
Albuquerque, NM 87103 (telephone 505/248-6920, facsimile 505/248-6922).

Relationship to Habitat Conservation Plans and Other Planning Efforts

Section 3(5)(A) of the Act defines critical habitat, in part, as
those areas requiring special management considerations or protection.
Section 10(a)(1)(B) of the Act authorizes us to issue permits for the
take of listed species incidental to otherwise lawful activities. This
permit allows a non-Federal landowner to proceed with an activity that
is legal in all other respects, but that results in the incidental
taking of a listed species. An incidental take permit application must
be supported by an HCP that identifies conservation measures that the
permittee agrees to implement for the species to minimize and mitigate
the impacts of the permitted incidental take. The purpose of the HCP is
to describe and ensure that the effects of the permitted action on
covered species are adequately minimized and mitigated, and that the
action does not appreciably reduce the survival and recovery of the
species.
We began working with Pima County in 1998 to develop the Sonoran
Desert Conservation Plan which identifies and provides for the regional
or area-wide protection and perpetuation of plants, animals, and their
habitats, while allowing compatible land-use and economic activity.
This regional HCP will address the effects of urban growth and propose
conservation for 55 vulnerable species in Pima County, including the
pygmy-owl. The Town of Marana is also pursuing an incidental take
permit for actions within their jurisdiction that will address the
pygmy-owl and other species. There is one currently operative HCP (Lazy
K Bar Ranch) that specifically addresses the pygmy-owl and its habitat.
Based on our evaluation of this HCP we have concluded, pursuant to
section 3(5)(A) of the Act, that areas within this HCP do not require
additional special management considerations or protection, and
consequently we have not included areas within it as proposed critical
habitat. (See the Managed Lands section, above, for a discussion of the
factors considered).
In the event that future HCPs covering the pygmy-owl are developed
within the boundaries of designated critical habitat, we will work with
applicants to ensure that the HCPs provide for protection and
management of habitat areas essential for the conservation of the
pygmy-owl.
The HCP development process provides an opportunity for more
intensive data collection and analysis regarding the use of particular
habitat areas by pygmy-owls. The process also enables us to conduct
detailed evaluations of the importance of such lands to the long-term
survival of the species in the context of constructing a biologically
configured system of interlinked habitat areas.
We will provide technical assistance and work closely with
applicants throughout the development of future HCPs to identify lands
essential for the conservation of the pygmy-owl and appropriate
management for those lands. The take minimization and compensation
measures provided under these HCPs are expected to protect critical
habitat. Furthermore, we will complete intra-Service consultation on
our issuances of section 10(a)(1)(B) permits for these HCPs to ensure
permit issuance will not destroy or adversely modify critical habitat.
If an HCP that addresses the pygmy-owl as a covered species is
ultimately approved, we may reassess the critical habitat boundaries in
light of the HCP.

Economic Analysis

Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific and commercial data
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 critical
habitat. We cannot exclude areas from critical habitat when such an
exclusion will result in the extinction of the species. We have
conducted a robust economic analysis that complies with the ruling by
the Tenth Circuit Court of Appeals in New Mexico Cattle Growers
Association, et. al. v. U.S. Fish and Wildlife Service on the effects
of the proposed critical habitat designation. We are announcing the
availability of the draft economic analysis with this proposed rule.

Public Comments Solicited

It is our intent that any final action resulting from this proposal
will be as accurate and as effective as possible. Therefore, we solicit
comments or suggestions from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party concerning this proposed rule. We particularly seek comments
concerning:
(1) Whether all areas proposed for designation are essential to the
conservation of the species;
(2) Whether any lands within the Tohono O'odham Nation should be
included in the designation;
(3) Whether the benefits of excluding specific areas will outweigh
the benefits of including those areas as critical habitat;
(4) Whether any areas included in the proposed designation have
adequate special management and protection in place such that they do
not meet the definition of critical habitat;
(5) Whether we have looked at the right biological factors and
other relevant data concerning the number and distribution of pygmy-
owls in Arizona, quantity and quality of available pygmy-owl habitat,
and what habitat is essential to the conservation of the species and
why. Is there additional information we have not considered?;
(6) Whether the methodology utilized to delineate the proposed
critical habitat boundaries is appropriate for determining areas that
are essential to the conservation of the pygmy-owl (e.g., range of the
owl, specific sites, and the need for habitat connectivity);
(7) If the rule accurately reflects the land use practices and
current or planned activities in the subject areas and their possible
impacts on proposed critical habitat;
(8) Whether there are any foreseeable economic or other impacts
resulting from the proposed designation of critical habitat, including
any impacts on small entities or families that are not considered in
the draft economic

[[Page 71047]]

analysis (specifically estimated number of small businesses affected by
the designation);
(9) Whether economic and other values associated with designating
critical habitat for the pygmy-owl such as those derived from non-
consumptive uses (e.g., hiking, camping, bird-watching, enhanced
watershed protection, improved air quality, increased soil retention,
``existence values,'' and reductions in administrative costs) were
included appropriately;
(10) Whether we properly assessed the available literature
regarding pygmy-owls;
(11) If the use of the preliminary SMAs described in the draft
Recovery Plan is appropriate in delineating critical habitat areas;
(12) If the areas proposed for designation are essential to the
conservation of the species;
(13) Whether we have sufficient information to support designation
of each of the proposed units;
(14) What should the relationship be between the recovery plan and
the critical habitat designations; and
(15) Have we adequately addressed uncertainty and scientific
disagreement with respect to all aspects of the proposed designation?
Prior to making a final determination on this proposed rule, we
will take into consideration all relevant comments and additional
information received during the comment period.

Peer Review

In accordance with our policy published on July 1, 1994 (59 FR
34270), we will seek the expert opinions of at least three appropriate
and independent specialists regarding this proposed rule. The purpose
of such review is to promote listing decisions that are based on
scientifically sound data, assumptions, and analyses, including input
from appropriate experts and specialists. We will send these peer
reviewers copies of this proposed rule immediately following its
publication in the Federal Register. We will invite these peer
reviewers to comment, during the public comment period, on the specific
assumptions and conclusions regarding the proposed designation of
critical habitat.
We will consider all comments and information received during the
90-day comment period on this proposed rule during preparation of a
final rulemaking. Accordingly, the final decision may differ from this
proposal. Depending on public comments, information, or data received,
we will evaluate and make a final determination on the areas that are
essential to the conservation of pygmy-owl, and critical habitat could
be revised as appropriate.

Public Hearings

The Act provides for one or more public hearings on this proposal,
if requested. We are scheduling one public hearing on this proposal. We
will hold this public hearing in the Leo Rich Theater at the Tucson
Convention Center in Tucson, AZ, on January 23, 2002, from 6:30 p.m. to
9 p.m. For more information on this hearing, contact the Field
Supervisor of the Arizona Ecological Services Field office (see
ADDRESSES section).

Executive Order 12866

Executive Order 12866 requires each agency to write regulations/
notices that are easy to understand. We invite your comments on how to
make this notice easier to understand including answers to questions
such as the following: (1) Are the requirements in the notice clearly
stated? (2) Does the notice contain technical language or jargon that
interferes with the clarity? (3) Does the format of the notice
(grouping and order of sections, use of headings, paragraphing, etc.)
aid or reduce its clarity? (4) Is the description of the notice in the
SUPPLEMENTARY INFORMATION section of the preamble helpful in
understanding the notice? What else could we do to make the notice
easier to understand?
Send a copy of any comments that concern how we could make this
notice easier to understand to: Office of Regulatory Affairs,
Department of the Interior, Room 7229, 1849 C Street, NW., Washington,
DC 20240. You may e-mail your comments to this address:
Execsec@ios.doi.gov.
Our practice is to make comments that we receive on this
rulemaking, including names and home addresses of respondents,
available for public review during regular business hours. Individual
respondents may request that we withhold their home address from the
rulemaking record, which we will honor to the extent allowable by
Federal law. In some circumstances, we would withhold from the
rulemaking record a respondent's identity, as allowable by Federal law.
If you wish for us to withhold your name and/or address, you must state
this prominently at the beginning of your comment. However, we will not
consider anonymous comments. We will make all submissions from
organizations or businesses, including individuals identifying
themselves as representatives or officials of organizations or
businesses, available for public inspection in their entirety.

Required Determinations

Regulatory Planning and Review

For the purposes of Executive Order 12866, this document is a
significant rule and has been reviewed by the Office of Management and
Budget (OMB). A separate consideration of the economic and other
relevant impacts will be conducted under section 4(b)(2) of the Act.
We have prepared a draft economic analysis to assist us in
compliance with section 4(b)(2) as well as Executive Order 12866 and
other regulatory requirements. Concerning Executive Order 12866, the
draft analysis indicates that this rule will not have an annual
economic effect of $100 million or more or adversely affect an economic
sector, productivity, jobs, the environment, or other units of
government. Under the Act, critical habitat may not be destroyed or
adversely modified by a Federal agency action; the Act does not impose
any restrictions related to critical habitat on non-Federal persons
unless they are conducting activities funded or otherwise sponsored or
permitted by a Federal agency.
As discussed above, Federal agencies would be required to ensure
that their actions do not destroy or adversely modify designated
critical habitat of the pygmy-owl. Because of the potential for impacts
on other Federal agencies' activities, we will review this proposed
action for any inconsistencies with other Federal agency actions.
If this rule is finalized we will determine whether it materially
affects entitlements, grants, user fees, loan programs, or the rights
and obligations of their recipients, except those involving Federal
agencies which would be required to ensure that their activities do not
destroy or adversely modify designated critical habitat. As discussed
above, we have conducted an economic analysis and determined that this
rule will not have an annual economic effect of $100 million or more.
OMB has determined that the critical habitat portion of this rule
will raise novel legal or policy issues and, as a result, this rule has
undergone OMB review. The proposed rule follows the requirements for
proposing critical habitat contained in the Act.

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

Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996),
whenever a Federal

[[Page 71048]]

agency is required to publish a notice of rulemaking for any proposed
or final rule, it must prepare and make available for public comment a
regulatory flexibility analysis that describes the effect of the rule
on small entities (i.e., small businesses, small organizations, and
small government jurisdictions). However, no regulatory flexibility
analysis is required if the head of an agency certifies that the rule
will not have a significant economic impact on a substantial number of
small entities. SBREFA amended the Regulatory Flexibility Act to
require Federal agencies to provide a statement of the factual basis
for certifying that a rule will not have a significant economic impact
on a substantial number of small entities. Based on the information
available to us at this time, we are certifying that the rule will not
have a significant effect on a substantial number of small entities.
However, we intend to consider the information from the addendum to the
economic analysis prior to our final designation. The following
discussion explains our rationale and is based upon the information
contained in the draft Economic Analysis that we are providing for
comment concurrently with this proposed rule.
This analysis first determines whether critical habitat potentially
affects a ``substantial number'' of small entities in counties
supporting critical habitat areas. While SBREFA does not explicitly
define ``substantial number,'' the Small Business Administration, as
well as other Federal agencies, have interpreted this to represent an
impact on 20 percent or greater of the number of small entities in any
industry.\1\
---------------------------------------------------------------------------

\1\ See\\1/2\\ U.S. Small Business Administration, The
Regulatory Flexibility Act: An Implementation Guide for Federal
Agencies, 1998. Accessed at: www.sba.gov/advo/laws/rfaguide.pdf\\1/
2\\ on December 3, 2001.
---------------------------------------------------------------------------

Estimated Number of Small Businesses Affected: The ``Substantial
Number'' Test

To be conservative, (i.e., more likely to overstate impacts than
understate them), this analysis assumes that a unique entity will
undertake each of the projected consultations in a given year, and so
the number of businesses affected is equal to the total annual number
of consultations (both formal and informal).\2\
---------------------------------------------------------------------------

\2\ While it is possible that the same business could consult
with the Service more than once, it is unlikely to do so during the
one-year timeframe addressed in this analysis. However, should such
multiple consultations occur, they would concentrate effects of the
designation on fewer entities. In such a case, the approach outlined
here likely would overstate the number of affected businesses.
---------------------------------------------------------------------------

First, the number of small businesses affected is estimated; \3\
---------------------------------------------------------------------------

\3\ Note that because these values represent the probability
that small businesses will be affected during a one-year time
period, calculations may result in fractions of businesses. This is
an acceptable result, as these values represent the probability that
small businesses will be affected by section 7 implementation of the
Act.
---------------------------------------------------------------------------

[sbull] Estimate the number of businesses within the study area
affected by section 7 implementation annually (assumed to be equal to
the number of annual consultations);
[sbull] Calculate the percent of businesses in the affected
industry that are likely to be small;
[sbull] Calculate the number of affected small businesses in the
affected industry;
[sbull] Calculate the percent of small businesses likely to be
affected by critical habitat.
This calculation reflects conservative assumptions and nonetheless
yields an estimate that is still far less than the 20 percent threshold
that would be considered ``substantial.'' As a result, this analysis
concludes that a significant economic impact on a substantial number of
small entities will not result from the designation of critical habitat
for the pygmy-owl. Nevertheless, an estimate of the number of small
businesses that will experience effects at a significant level is
provided below.
Small businesses in the construction and development industry could
potentially be affected by the designation of critical habitat for the
pygmy-owl if the designation leads to significant project modifications
or delays associated with development. To be conservative, this
analysis assumes that a unique company will undertake each of the
projected consultations in a single year and that each of these
companies will be a small business. Thus, this analysis assumes that 27
unique companies will consult with the Service on development projects
over ten years, or approximately 2.7 businesses per year. There are
approximately 161 residential development companies in the counties in
which critical habitat units are located.\4\ Thus, approximately 1.7
percent of small residential development companies in Pima and Pinal
Counties may be affected by the designation of critical habitat for the
pygmy-owl annually. Because 1.7 percent reflects conservative
assumptions and is far less than the 20 percent threshold that would be
considered ``substantial'', this analysis concludes that a significant
economic impact on a substantial number of small entities will not
result from the designation of critical habitat for the pygmy-owl.
---------------------------------------------------------------------------

\4\ Census Bureau, County Business Patterns, Accessed at: http://www.census.gov/epcd/
cbp/view/cbpview.html on August 26, 2002.
---------------------------------------------------------------------------

To the extent that the designation of critical habitat for the
pygmy-owl may lead to an increase in the number of formal consultations
and project modifications, some mining operations, particularly the
smaller operators in Pinal County, may be affected by the designation.
The Service estimates that approximately six consultations are likely
to occur within pygmy-owl critical habitat areas in the next ten years,
or approximately 0.6 per year. There are approximately 66 mining
companies in the counties in which critical habitat units are
located.\5\ Therefore approximately 0.9 percent of small mining
companies in Pima and Pinal Counties may be affected by the designation
of critical habitat for the pygmy-owl annually. Because 0.9 percent
reflects conservative assumptions and is still less than the 20 percent
threshold that would be considered ``substantial,'' this analysis
concludes that a significant economic impact on a substantial number of
small entities will not result from the designation of critical habitat
for the pygmy-owl.
---------------------------------------------------------------------------

\5\ Census Bureau, County Business Patterns, Accessed at: http://www.census.gov/epcd/cbp/
view/cbpview.html on August 26, 2002.
---------------------------------------------------------------------------

Estimated Effects on Small Businesses: The ``Significant Effect'' Test

Costs of critical habitat designation to small businesses consist
primarily of the cost of participating in section 7 consultations and
the cost of project modifications. To calculate the likelihood that a
small business will experience a significant effect from critical
habitat designation for the pygmy-owl, the following calculations were
made:
[sbull] Calculate the per-business cost. This consists of the unit
cost to a third party of participating in a section 7 consultation
(formal or informal) and the unit cost of associated project
modifications. To be conservative, this analysis uses the high-end
estimate for each cost.
[sbull] Determine the amount of annual sales that a company would
need to have for this per-business cost to constitute a ``significant
effect.'' This is calculated by dividing the per-business cost by the
three percent ``significance'' threshold value.
[sbull] Estimate the likelihood that small businesses in the study
area will have

[[Page 71049]]

annual sales equal to or less than the threshold amount calculated
above. This is estimated using national statistics on the distribution
of sales within industries.\6\
---------------------------------------------------------------------------

\6\ This probability is calculated based on national industry
statistics obtained from the Robert Morris Associated Annual
Statement of Studies: 2001-2002 and from comparison with the SBA
definitions of small businesses.
---------------------------------------------------------------------------

[sbull] Based on the probability that a single business may
experience significant effects, calculate the expected value of the
number of businesses likely to experience a significant effect.
[sbull] Calculate the percent of businesses in the study area
within the affected industry that are likely to be affected
significantly.
Small businesses in the construction and development industries
per-business cost could potentially be $4.3 million. The annual sales
that a company would need to have for this per-business cost to
constitute a ``significant effect'' would be $120 million. Based on
national statistics 11 percent of small businesses in Pima and Pinal
Counties will have sales in this range. Thus, the expected number of
small businesses likely to experience a significant effect is 89
percent of 2.7, or 2.4 businesses annually. This number represents
approximately 1.4 percent of construction and development companies in
Pima and Pinal Counties. Because 1.4 percent reflects conservative
assumptions and is still less than the 20 percent threshold that would
be considered ``significant,'' this analysis concludes that a
significant economic impact on a substantial number of small entities
will not result from the designation of critical habitat for the pygmy-
owl.
The mining industry's per-business cost could potentially be
$45,700. The annual sales that a company would need to have for this
per-business cost to constitute a ``significant effect'' would be $1.5
million. Based on national statistics 22 percent of small businesses in
Pima and Pinal Counties will have sales in this range. The expected
number of small businesses likely to experience a significant effect is
88 percent of 0.6, or 0.5 businesses annually. This number represents
approximately or 0.9 percent of mining companies in Pima and Pinal
Counties. Because 0.9 percent reflects conservative assumptions and is
still less than the 20 percent threshold that would be considered
``significant,'' this analysis concludes that a significant economic
impact on a substantial number of small entities will not result from
the designation of critical habitat for the pygmy-owl.

Executive Order 13211

On May 18, 2001, the President issued an Executive Order (E.O.
13211) on regulations that significantly affect energy supply,
distribution, and use. Executive Order 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
We have a very good consultation history for the pygmy-owl; thus, we
can describe the kinds of actions that have undergone consultations.
Within the areas proposed as critical habitat units, the BLM,
Department of Energy (DOE), and the Federal Energy Regulatory
Commission (FERC) are likely to undergo section 7 consultation for
actions relating to energy supply, distribution, or use.
Since the species was listed in 1997, the BLM has consulted on the
Safford Resource Management Plan (RMP) and the Phoenix RMP, which
address utility corridors. There are several other proposed energy
distribution lines (e.g., the Sonora-Arizona Interconnection Project)
in the planning phases that involve Federal agencies, including DOE,
FERC, BLM and the Forest Service, depending on the alternative selected
and the lands that will be affected. These distribution lines are
likely to require section 7 consultation for one or several listed
species that occur along their routes. Measures, including adjustments
to routes, should be available to minimize and mitigate adverse
effects.
While this rule is a significant regulatory action under Executive
Order 12866, it is not expected to significantly affect energy
supplies, distribution, or use. Therefore, this action is not a
significant energy action and no Statement of Energy Effects is
required.

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

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), based upon the information available to us through the draft
Economic Analysis and as described in the ``Regulatory Flexibility
Act'' section above:
(1) This rule will not ``significantly or uniquely'' affect small
governments. A Small Government Agency Plan is not required. Small
governments will be affected only to the extent that any of their
actions involving Federal funding or authorization must not destroy or
adversely modify the critical habitat.
(2) This rule will not produce a Federal mandate of $100 million or
greater in any year (i.e., it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act).

Takings

In accordance with Executive Order 12630, we have considered
whether this rule has significant takings implications.
I. Summary of the Action
We are proposing to designate approximately 1.2 million acres of
critical habitat for the pygmy-owl. On September 21, 2001, the United
States District Court for the District of Arizona, in National
Association of Home Builders et al. v. Norton, Civ.-00-0903-PHX-SRB
vacated the previous designation of critical habitat for the pygmy-owl
and ordered us to issue a new proposed rule designating critical
habitat for the pygmy-owl. This proposed rule is being issued pursuant
to that order.
II. Assessment of Takings Implications
The mere promulgation of a regulation, like the enactment of a
statute, is rarely sufficient to establish that private property has
been taken unless the regulation on its face denies the property owners
economically viable use of their land (Agins v. City of Tiburon, 447
U.S. 255, 260-263 (1980); Hodel v. Virginia Surface Mining and
Reclamation Ass'n, 452 U.S. 264, 195 (1981)). The designation of
critical habitat alone does not deny anyone economically viable use of
their property. The Act does not automatically restrict all uses of
critical habitat, but only imposes restrictions under section 7(a)(2)
on Federal agency actions that may result in destruction or adverse
modification of designated critical habitat. This is not the very rare
case such as that found in Whitney Benefits, Inc. v. United States, 926
F.2nd 1169 (Fed. Cir. 1991), in which a statute explicitly prohibits
the only economically useful activity possible on certain lands and a
court is able to discern without administrative action that no permit
could possibly be granted.
Recognizing that governmental regulation involves adjustment of
rights for the public good, the court has found that a regulation which
curtails the most profitable use of property, resulting in a reduction
in value or limitations on use, likewise does not necessarily result in
a taking (Andrus v. Allard, 444 U.S. 51, 66 (1979); Agins, 447 U.S. at
262; Hodel, 452 U.S. at 296). Where a regulation denies property owners
all economically viable use of their property, then a taking will
likely occur (Agins, 447 U.S. at 260). However, where regulation does
not categorically

[[Page 71050]]

prohibit use but merely regulates the conditions under which such use
may occur, and does not regulate alternative uses, then no taking
occurs (Hodel, 452 U.S. at 296). With the designation of critical
habitat, property owners are not denied the economically viable use of
their land. Use of land is not categorically prohibited but rather
certain restrictions are imposed upon Federal agency actions which may
result in the destruction or adverse modification of critical habitat.
As such, it is not likely that taking occurs.
Even beyond the above, however, a property owner must establish
that a ``concrete controversy'' exists before the court may even reach
the merits of a takings claim (Hodel, 452 U.S. at 294; Agins, 447 U.S.
at 260). The property owner must show a specific and real impact to
specific properties before judicial resolution of a takings claim is
made (MacDonald, Sommer, and Frates v. Yolo County, 447 U.S. 340, 348-
349; Agins, 447 U.S. at 260). The issue is not yet ripe for judicial
resolution until administrative action is pursued to a final
determination (Hodel, 452 U.S. at 297; MacDonald, 447 U.S. at 348-349).
It is likely that, prior to judicial intervention, a solution will be
reached at the administrative level (Hodel, 452 U.S. at 297). The Act
provides mechanisms, through section 7 consultation, to resolve
apparent conflicts between proposed Federal actions, including Federal
funding or permitting of actions on private land, and the conservation
of the species, including avoiding the destruction or adverse
modification of designated critical habitat. Based on our experience
with section 7 consultations for all listed species, virtually all
projects--including those that, in their initial proposed form, would
result in jeopardy or adverse modification determinations in section 7
consultations--can be implemented successfully with, at most, the
adoption of reasonable and prudent alternatives. These measures must be
economically feasible and within the scope of authority of the Federal
agency involved in the consultation.
We believe that the takings implications associated with this
critical habitat designation will be insignificant, even though
private, State, and Federal lands are included. Impacts of critical
habitat designation may occur on private lands where there is Federal
involvement (e.g., Federal funding or permitting) subject to section 7
of the Act. Impacts on private entities may also result if the decision
on a proposed action on Federally owned critical habitat could affect
economic activity on adjoining non-Federal land. Each action would be
evaluated by the involved Federal agency, in consultation with us, in
relation to its impact on the pygmy-owl and its designated critical
habitat. In the unexpected event that extensive modifications would be
required to a project on private property, it is not likely that the
economic impacts to the property owner would be of sufficient magnitude
to support a takings action. We do not anticipates that property values
will be affected by critical habitat designation, but this will be
analyzed in our economic analysis. Therefore, we anticipate that this
critical habitat designation will result in insignificant takings
implications on these lands.
III. Alternatives to Designating Critical Habitat
Under the Act, there is no alternative to designation of critical
habitat. Critical habitat must be designated unless we determine that
it is not prudent or determinable to do so (16 U.S.C. 1533(b)(6)(C)).
As described above, we are under court order to complete a rulemaking
to designate critical habitat for the pygmy-owl. We will further
consider the economic and other relevant impacts of the designation in
deciding whether to exclude areas for the designation in the final
rule.
IV. Financial Exposure
The designation of critical habitat for the pygmy-owl will not on
its face cause a taking of private property. Because the Act's critical
habitat protection requirements apply only to Federal agency actions,
few, if any, conflicts between critical habitat and private property
rights should result. No approximation of the financial exposure of the
Federal government is possible, but it is expected to be insignificant.
Based on the above assessment, we find that this proposed rule
designating critical habitat for the pygmy-owl does not pose
significant takings implications.

Federalism

In accordance with Executive Order 13132, we have considered
whether this rule has significant Federalism effects and have
determined that a Federalism assessment is not required. In keeping
with Department of the Interior policy, we requested information from
and coordinated development of this proposed rule with appropriate
resource agencies in Arizona. We will continue to coordinate any future
designation of critical habitat for the pygmy-owl with the appropriate
agencies.
We do not anticipate that this regulation will intrude on State
policy or administration, change the role of the Federal or State
government, or affect fiscal capacity. For example, we have conducted
many formal consultations with the Corps and EPA over actions related
to their issuance of permits pursuant to sections 404 and 402,
respectively, under the Clean Water Act. Because these consultations
were conducted prior to the original designation of critical habitat,
while critical habitat was in place, and after critical habitat
designation for the pygmy-owl was vacated pursuant to court order, we
do not believe that this designation of critical habitat will have
significant Federalism effects. If this critical habitat designation is
finalized, Federal agencies also must ensure, through section 7
consultation with us, that their activities do not destroy or adversely
modify designated critical habitat. Nevertheless, we do not anticipate
that the types of measures, provided by past consultations (e.g., those
issued from 1997 through 2002), will increase because an area is
designated as critical habitat. This rule also will not change the
private property rights within the area proposed to be designated as
critical habitat. For these reasons, we do not anticipate that the
designation of critical habitat will change State policy or
administration, change the role of the Federal or State government, or
affect fiscal capacity.
Within some areas the designation of critical habitat could trigger
additional review of Federal activities under section 7 of the Act, and
may result in additional requirements on Federal activities to avoid
destroying or adversely modifying critical habitat. Any action that
lacked Federal involvement would not be affected by the critical
habitat designation. Should a federally funded, permitted, or
implemented project be proposed that may affect designated critical
habitat, we will work with the Federal action agency and any applicant,
through section 7 consultation, to identify ways to implement the
proposed project while minimizing or avoiding any adverse effect to the
species or critical habitat. In our experience, the majority of such
projects can be successfully implemented with modifications that avoid
significant economic impacts to project proponents.
The designation may have some benefit to these governments in that
the areas essential to the conservation of the species would be clearly
defined, and the primary constituent elements of the habitat necessary
to the survival of the species would be identified. While this
definition and identification do not alter where and what federally
sponsored

[[Page 71051]]

activities may occur, it may assist these local governments in long-
range planning (rather than waiting for case-by-case section 7
consultations to occur).

Civil Justice Reform

In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule would not unduly burden the
judicial system and would meet the requirements of sections 3(a) and
3(b)(2) of the Order. We propose to designate critical habitat in
accordance with the provisions of the Act. The rule uses standard
property descriptions and identifies the primary constituent elements
within the designated areas to assist the public in understanding the
habitat needs of the pygmy-owl.

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

This rule does not contain any new collections of information that
require approval by the Office of Management and Budget (OMB) under 44
U.S.C. 3501 et seq. This rule will not impose new record-keeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations.

National Environmental Policy Act

It is our position that, outside the Tenth Circuit, we do not need
to prepare environmental analyses as defined by the NEPA in connection
with designating critical habitat under the Endangered Species Act of
1973, as amended. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244). This assertion was upheld in the Ninth Circuit Douglas County
v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied, 116 S. Ct. 698
(1996).

Government-to-Government Relationship With Indian Pueblos and Tribes

In accordance with the Secretarial Order 3206, ``American Indian
Tribal Rights, Federal-Tribal Trust Responsibilities, and the
Endangered Species Act'' (June 5, 1997), the President's memorandum of
April 29, 1994, ``Government-to-Government Relations with Native
American Tribal Governments'' (59 FR 22951), E.O. 13175, and the
Department of the Interior's requirement at 512 DM 2, we understand
that recognized Federal Indian Pueblos and Tribes must be related to on
a Government-to-Government basis. Therefore, we are soliciting
information from the Indian Pueblos and Tribes and will arrange
meetings with them during the comment period on potential effects to
them or their resources that may result from critical habitat
designation.
We have met with representatives of the Tohono O'odham Nation and,
based on the Section 4(b)(2) of the Act, we have determined that the
benefits of designating the Nation as critical habitat do not outweigh
the benefits of excluding them. We also believe that this exclusion
will not result in the extinction of the pygmy-owl because of the
limited threats to pygmy-owls and their habitat within the Nation and
the Nation's initiation of a conservation program. In addition, the
Recovery Team has not recommended inclusion of the Tohono O'odham
Nation as a Recovery Area. Consequently, we are not proposing critical
habitat on the Tohono O'odham Nation.
Pygmy-owls were recently located on a grazing allotment held by the
Pascua Yaqui Tribe. These grazing leases include State Trust and
Federal lands, but are adjacent to lands held in title by the Tribe. It
will be important to coordinate conservation efforts for the pygmy-owl
in this area with the Pascua Yaqui Tribe.
We will continue to work with the Tohono O'odham Nation and the
Pascua Yaqui Tribe regarding the development of management and
conservation plans, conservation agreements, grants, and other
cooperative projects that could contribute to the recovery of pygmy-
owls in Arizona.

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).

Author

The primary authors of this notice are the staff at the Arizona
Ecological Services Field Office (see ``Addresses'' section).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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. Amend Sec. 17.95(b) by revising critical habitat for the Pygmy-
owl, cactus ferruginous (Glaucidium brasilianum cactorum), to read as
follows:

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 and Pinal
Counties, Arizona, on the maps below. These maps are a graphical
representation of the geographic boundaries that encompass the proposed
pygmy-owl critical habitat and are provided for illustrative purposes
only. The map and GIS files used to create these maps are not the
definitive source for determining critical habitat boundaries. While we
make every effort to represent the proposed critical habitat shown on
these maps as completely and accurately as possible (given existing
time, resource, data, and display constraints), the maps are for
reference only; the areas that geographically contain the proposed
critical habitat are legally described below.
(2) Within these areas, the primary constituent elements for the
pygmy-owl are those habitat components that are essential for the
primary biological needs of foraging (provide sufficient prey base and
cover from which to hunt in an appropriate configuration and proximity
to nest and roost sites), nesting (trees and cacti of adequate size to
support cavities in proximity to foraging, roosting, sheltering and
dispersal habitats), rearing of young (adequate cover for protection
from climatic elements and predators in an appropriate configuration in
relation to the nest site), roosting (provides substrates of adequate
size and cover), sheltering (provides substrates of adequate size and
cover), and dispersal (provides adequate cover and configuration to
facilitate movement and reduce mortality factors, i.e., predators, prey
availability, human-related factors, etc.). Only areas within these
geographic boundaries that are below 1,200 m (4,000 ft) and include one
or more of the primary constituent elements related to vegetation are
proposed as critical habitat.
(3) The primary constituent elements include:
(i) Elevations below 1,200 m (4,000 ft) within the biotic
communities of Sonoran riparian deciduous woodlands;

[[Page 71052]]

Sonoran riparian scrubland; mesquite bosques; xeroriparian communities;
tree-lined drainages in semidesert, Sonoran savanna, and mesquite
grasslands; and the Arizona Upland and Lower Colorado River
subdivisions of Sonoran desertscrub (see Brown 1994 for a description
of these vegetation communities);
(ii) Nesting cavities located in trees including, but not limited
to, cottonwood, willow, ash, mesquite, palo verde, ironwood, and
hackberry with a trunk diameter of 15 cm (6 in) or greater measured 1.4
m (4.5 ft) from the ground, or large columnar cactus such as saguaro or
organ pipe greater than 2.4 m (8 ft);
(iii) Multilayered vegetation (presence of canopy, mid-story, and
ground cover) provided by trees and cacti in association with shrubs
such as acacia, prickly pear, desert hackberry, graythorn, etc., and
ground cover such as triangle-leaf bursage, burro weed, grasses, or
annual plants. By way of description, preliminary data gathered by the
Arizona Game and Fish Department (AGFD) indicates 35 percent ground
cover at perch sites and 48 percent ground cover at nest sites; mid-
story cover of 65 percent at perch sites and 65 percent at nest sites;
and 73 percent canopy cover at perch sites and 87 percent canopy cover
at nest sites (Wilcox et al. 1999). This AGFD information is based on a
limited study area, a small sample size, and methods used to describe
microhabitat characteristics and may have only limited applicability in
project evaluation;
(iv) Vegetation providing mid-story and canopy level cover (this is
provided primarily by trees greater than 2 m (6 ft) in height) in a
configuration and density compatible with pygmy-owl flight and
dispersal behaviors. Within 15-m radius plots centered on nests and
perch sites, AGFD has documented the mean number of trees and average
height of trees for Sonoran desertscrub and semidesert grassland areas.
The mean number of trees per plot in Sonoran desertscrub plots was 12.5
with a mean height of 3.95 m. The mean number of trees in semidesert
grassland was 28.5 with a mean height of 8.1 m (Wilcox et al. 2000).
This AGFD information is based on a small sample size using a method
designed to describe microhabitat characteristics. These numbers may
have only limited applicability in project evaluations; and
(v) Habitat elements configured and human activity levels minimized
so that unimpeded use, based on pygmy-owl behavioral patterns (typical
flight distances, activity level tolerance, etc.), can occur during
dispersal and within home ranges (the total area used on an annual
basis).
(4) Critical habitat does not include non-Federal lands covered
under the existing legally operative incidental take permit (Lazy K Bar
Ranch) for the pygmy-owl issued under section 10(a) of the Act.
(5) Areas above 1,200 m (4,000 ft) and existing features and
structures within proposed critical habitat, such as buildings; roads;
cultivated agricultural land; residential landscaping (e.g., mowed
nonnative ornamental grasses); residential, commercial, and industrial
developments; and other features, do not contain the primary
constituent elements. Therefore, these areas are not considered
critical habitat and are specifically excluded by definition.
(6) Note: Index map follows:

[[Page 71053]]

[GRAPHIC] [TIFF OMITTED] TP27NO02.000

(7) Unit 1. Pima County, Arizona. From USGS Sells, Ariz. 1979;
Atascosa Mts., Ariz. 1979.; and Silver Bell Mtns., 1994.
(i) Unit 1: Gila and Salt Principal Meridian, Arizona: T. 14 S., R.
9 E.,

[[Page 71054]]

secs. 33 to 36; T. 14 S., R. 10 E., secs. 31 to 36; T. 15 S., R. 9 E.,
secs. 1 to 4, 9 to 16, 21 to 36; T. 15 S., R. 10 E., secs. 1 to 36; T.
16 S., R. 8 E., secs. 25 to 28 and 33 to 36; T. 16 S., R. 9 E., secs. 1
to 6, 12 to 15 and 19 to 36; T. 16 S., R. 10 E., secs. 1 to 36; T. 17
S., R. 8 E., secs. 1 to 3, 10 to 16, 21 to 36, and E. \1/2\ of secs. 4
and 9; T. 17 S., R. 9 E., secs. 1 to 36; T. 17 S., R. 10 E., secs. 1 to
36; T. 18 S., R. 7 E., secs. 1, 12, and those portions of 2, 11, 13 to
14, 24, 25 and 36 east of the Tohono O'odham Nation boundary; T. 18 S.,
R. 8 E., secs. 1 to 18, 20 to 36, and those portions of sec. 19 east of
the Tohono O'odham Nation boundary; T. 18 S., R. 9 E., secs. 1 to 36;
T. 18 S., R. 10 E., secs. 1 to 36; T. 19 S., R. 7 E., secs. 24, 25, 35,
36, and those portions of secs. 1, 12, 14, 23, 26, 33 and 34 east of
the Tohono O'odham Nation boundary; T. 19 S., R. 8 E., secs. 1 to 36;
T. 19 S., R. 9 E., secs. 1 to 36; T. 19 S., R. 10 E., secs. 1 to 12; T.
20 S., R. 7 E., secs. 1 to 2, 11 to 15, 22 to 27, 34 to 36, and those
portions of secs. 3, 9 to 10, 16 to 17, 21, 28 to 29, 32 to 33 east of
the Tohono O'odham Nation; T. 20 S., R. 8 E., secs. 1 to 36; T. 20 S.,
R. 9 E., secs. 1 to 12, 14 to 22, 27 to 34 and those portions of 13, 23
to 26, 36 within the boundary of the Buenos Aires N.W.R.; T. 21 S., R.
7 E., secs. 1 to 4, 9 to 16, 21 to 27, 34 to 36 and those portions of
secs. 5, 8, 17, 20, 28, 29 east of the Tohono O'odham Nation boundary
and the portion of sec. 33 north of the Tohono O'odham Nation boundary;
T. 21 S., R. 8 E., secs. 1 to 36; T. 21 S., R. 9 E., secs. 1 to 11, 14
to 22, 27 to 33, N \1/2\ of sec. 34, and those portions of 12, 13, and
24 within the boundary of the Buenos Aires N.W.R.; T. 21 S., R. 10 E.,
those portions of secs. 6, 7, 18 to 20, 29, 30 within the boundary of
the Buenos Aires N.W.R.; T. 22 S., R. 7 E., secs. 1 to 3, 10 to 15, and
those portions of secs. 22 to 24 north of Mexico; T. 22 S., R. 8 E.,
secs. 1 to 27 and those portions of secs. 28 to 30, 33 to 36 north of
Mexico; T. 22 S., R. 9 E., secs. 6 to 7, 18 to 19, 30 to 31; T. 23 S.,
R. 8 E., the portion of sec. 1 north of Mexico; T. 23 S., R. 9 E., the
portion of sec. 6 north of Mexico and within the boundary of the Buenos
Aires N.W.R.
(ii) Note: Map of Unit 1 follows:

[[Page 71055]]

[GRAPHIC] [TIFF OMITTED] TP27NO02.001

(8) Unit 2. Pima and Pinal counties, Arizona. From USGS Casa
Grande, Ariz, 1994 and Silver Bell Mountains, Ariz., 1994 maps.
(i) Unit 2: Gila and Salt Principal Meridian, Arizona: T. 10 S., R.
9 E.,

[[Page 71056]]

secs. 25 to 36 and those portions of secs. 15 and 22 to 24 south and
west of the Santa Cruz River's east channel and associated diversion;
T. 10 S., R. 10 E., secs. 17 to 21, 27 to 33, the portions of sec. 8
south of Sasco Road, those portions of secs. 34 and 35 north of Pinal
Air Park Road, and those portions of secs. 9, 15, 16, 22, 23, 25, 26,
36 west of west edge of pavement of I-10; T. 11 S., R. 9 E., secs. 1 to
36; T. 11 S., R. 10 E., secs 19 and 30, W. \1/2\ of sec. 20, and W. \1/
2\ of sec. 29; T. 11 S., R. 11 E. that portion of sec. 6 west of west
edge of pavement of I-10; T. 12 S., R. 9 E., secs. 1 to 17, 19 to 29,
32 to 35, and W \1/2\ and SW\1/4\ of sec 32; T. 12 S., R. 10 E., secs.
6 to 7 and 18; T. 12 S., R. 11 E., sec. 36; T. 12 S., R. 12 E., sec.
17, 20, 29, 31 to 32, and those portions of sec. 8 south of the edge of
pavement of Avra Valley Road, that portion of sec. 9 west of edge of
pavement of I-10 and south of the edge of pavement of Avra Valley Road,
that portion of sec 15 east of the edge of pavement of Interstate 10,
those portions of sec. 16 east of the west levee/bank of the Santa Cruz
River, those portions of secs. 21 and 22 within the east and west
levies of the Santa Cruz River, the portions of secs. 26 and 27 within
the levees of the Santa Cruz River, E \1/2\ of the SE \1/4\ of sec 34
and that portion of sec. 34 south and east of the south edge of
pavement of Cortaro Road and the portion of sec. 34 within the levees
of the Santa Cruz River, that portion of sec. 35 west of the east levee
of the Santa Cruz River, and the portion of sec. 36 within the levees
of the Santa Cruz River; T.13 S., R. 9 E., secs. 1 to 18, 22 to 27, and
34 to 36; T. 13 S., R.10 E., secs. 7, 18 to 19, 29 to 36, and NW \1/4\
of NW \1/4\ of sec. 6, W. \1/2\ of sec. 17, W. \1/2\ of the SW \1/4\ of
sec. 20; T. 13 S., R. 11 E., secs. 13 to 15, 21 to 28, 31 to 36, S. \1/
2\ of sec. 9, S. \1/2\ of sec. 10, and S. \1/2\ of sec. 11, and N.E.\1/
4\ of sec. 29; T. 13 S., R. 12 E., sec.1 north of the edge of pavement
of Silverbell Road and west of the east levee of the Santa Cruz River,
sec. 2 except that portion south and east of Abington Road., sec. 3, SE
\1/4\ of sec. 4 and the portions of sec. 4 within Saguaro N.P., secs. 5
to 9, those portions of secs. 10 to 11 north and west of Abington Road,
NE \1/4\ and S \1/2\ of sec. 12, W \1/2\ of the NE \1/4\ and W \1/2\ of
sec. 13, E \1/2\ and SW \1/4\ of sec. 14, N \1/2\ of the NW \1/4\ and
NW \1/4\ of the NE \1/4\ and S \1/2\ of sec. 15, secs. 16 to 22, W \1/
2\ of sec. 23 and that portion of sec. 23 north and west of W. Paseo de
las Estrallas to N. Calle del Risco to W. Placita del Risco to N. Paseo
del Barranco to W. Calle de la Busca, and the portion of sec 24 north
and west of W. Calle de la Busca and Tortolita Road, secs. 28 to 33,
and that portion of secs. 34 and 35 within saguaro N.P. administrative
boundary; T. 13 S., R. 13 E., sec. 6 within the channel of the Santa
Cruz River and Canada del Oro and sec. 7 within the channel of the
Santa Cruz River and the Rillito River; T. 14 S., R. 9 E., secs. 1 to 3
and 6 to 12; T. 14 S., R. 10 E., secs. 1 to 12, 25, and those portions
of secs. 23, 24 and 26 outside the boundary of Tohono O'odham Nation;
T. 14 S., R. 11 E., secs. 1 to 15, 22 to 36; T. 14 S., R. 12 E., secs.
4 to 11, 13 to 22, 24, N. \1/2\ of 23, N. \1/2\ of 30, and those
portions of secs. 1 to 3, 12, and 25 within Tucson Mountain County
Park; T. 14 S., R. 13 E., those portions of secs. 7, 18, 19, and 28 to
30 within Tucson Mountain County Park; T. 15 S., R. 11 E., sec. 3 to 7.
(ii) Note: Map of Unit 2 follows:

[[Page 71057]]

[GRAPHIC] [TIFF OMITTED] TP27NO02.002

(9) Unit 3. Pima and Pinal counties, Arizona. From USGS Silverbell
Mountains, Ariz., 1994; Casa Grande, Ariz., 1994 maps.
(i) Unit 3: Gila and Salt Principal Meridian, Arizona: T. 9 S., R.
10 E., sec.

[[Page 71058]]

36 and S \1/2\ of sec. 35; T. 10 S., R. 10 E., secs. 1 to 3, 10 to 14,
24, those portions of secs. 9, 15, 22, 23, 25, 26, 36 east of east edge
of pavement of I-10, and S \1/2\ of sec. 4 east of the east edge of
pavement of I-10; T.10 S., R.11 E., secs. 1 to 13, 23 to 27, 31 to 36,
N \1/2\ of sec. 14, N \1/2\ of sec 15., N \1/2\ of sec. 16, N \1/2\ of
sec. 17, N \1/2\ of sec. 18, SE \1/4\ of sec. 22, S \1/2\ and NE \1/4\
of sec. 28, and S\1/4\ of sec. 29; T.10 S., R.12 E., Sec. 4 to 9, 16 to
19, N \1/2\ of sec. 1, S \1/2\ of N \1/2\ of sec. 2 and the N \1/2\ of
S \1/2\ of sec. 2, S \1/2\ of sec. 3, N \1/2\ and SW \1/4\ of sec 10,
NW \1/4\ of sec. 15, N \1/2\ and SW \1/4\ of sec 20, N \1/2\ and SW \1/
4\ of sec 30, W \1/2\ of sec 31, and those portions of secs. 28, 29,
31, 32, and 33 within 150 m (495 ft.) of the center of Cottonwood Wash
and its southern branch; T.11 S., R.11 E., secs. 1 to 5, the portion of
sec. 6 east of the eastern edge of pavement of I-10, E \1/2\ of sec.
12, and those portions of secs. 12, 13, 14 and 23 that are east of the
Central Arizona Project Canal property and within 150 m (495 ft.) of
the center of Cottonwood Wash; T.11 S., R.12 E., secs. 6, 7, 17, 20,
21, 25 to 28, 34 to 36, SW \1/4\ of sec. 5, W \1/2\ and SE \1/4\ of
sec. 8, W \1/2\ of sec 16, E \1/2\ and NW \1/4\ of sec. 18, NE \1/4\ of
sec. 19, E \1/2\ of Sec 29, E \1/2\ and NW \1/4\ of sec. 33, that
portion of sec. 5 within 150 m (495 ft.) of the center of Cottonwood
Wash, and those portions of secs. 3, 9, 10, 19, and 30 within 150 m
(495 ft) of the center of Cochie Wash; T.11 S., R.13 E., secs. 28 to
33; T.12 S., R.12 E., secs. 1 to 4, 10 to 14, 24, the E \1/2\ of NE \1/
4\ and the SE \1/4\ of the NE \1/4\ and the NE \1/4\ of the NW \1/4\ of
sec 5, those portions of secs. 9, 15 to 16, 23 east of the east edge of
pavement of I-10, N \1/2\ of sec. 25 and the E 3/4 of the S \1/2\ of
sec 25 excluding the SE \1/4\ of the SE \1/4\, and the portions of sec.
26 north of the north edge of pavement of Cortaro Farms Road and east
of the east edge of pavement of I-10; T12S, R13E, secs. 4 to 9, 16 to
21, N \1/2\ and E \1/2\ of the SE \1/4\ of sec 30, W \1/2\ of the SW
\1/4\ of sec. 29 and that portion of sec 29 north of Cortaro Farm Road
and west of Shannon Road.
(ii) Note: Map of Unit 3 follows:

[[Page 71059]]

[GRAPHIC] [TIFF OMITTED] TP27NO02.003

[[Page 71060]]

(10) Unit 4. Pinal County, Arizona. From USGS Casa Grande, Ariz.,
1994 and Mammoth, Ariz., 1986 maps.
(i) Unit 4: Gila and Salt Principal Meridian, Arizona: T. 8 S., R.
11 E., secs. 7 to 36; T. 8 S., R. 12 E., secs. 18 to 20, 29 to 33, and
those portions of secs. 7, 8, 16,17, 21, 22, 27, 28, 34 and 35 west of
edge of pavement of State Route 79; T. 9 S., R. 11 E., secs. 1 to 36;
T. 9 S., R. 12 E., secs. 3 to 11, 13 to 36, and those portions of secs.
1, 2, and 12 west of edge of pavement of State Route 79; T. 9 S., R. 13
E., secs. 19, 32 and 33.
(ii) Note: Map of Unit 4 follows:

[[Page 71061]]

[GRAPHIC] [TIFF OMITTED] TP27NO02.004

(11) Unit 5. Pima County, Arizona. From BLM Gila Bend, Ariz., 1981;
Ajo, Ariz., 1980; Dateland, Ariz., 1980; Cabeza Prieta Mountains,
Ariz., 1980; and USGS Lukeville, Ariz.--Sonona,

[[Page 71062]]

1994 and Quitobaquito Hills, Ariz.--Sonora, 1994 maps.
(i) Unit 5: Gila and Salt Principal Meridian, Arizona: T. 12 S., R.
5 W., secs. 1 to 5, 8 to 17, 20 to 29, 32 to 36; T. 12 S., R. 4 W.,
secs. 4 to 9, 16 to 21, 28 to 33; T. 13 S. R. 7 W. sec. 36; T. 13 S.,
R. 6 W., secs. 19 to 36; T. 13 S., R. 5 W., secs. 1 to 5, 8 to 17, and
19 to 36; T. 14 S., R. 10 W., secs. 25 to 28, 32 to 36, and the
portions of sec. 31 within Pima County, Arizona; T. 14 S., R. 9 W.,
secs. 25 to 36; T. 14 S., R. 8 W., secs. 13 to 16 and 20 to 36; T. 14
S., R. 7 W., secs. 1 to 4, and 8 to 36; T. 14 S., R. 6 W., secs. 1 to
36; T. 14 S., R. 5 W., secs. 1 to 36; T. 15 S., R. 10 W., secs. 1 to 5,
8 to 17, 20 to 29, 32 to 36, and those portions of secs. 6, 7, 18, 19,
30, and 31 within Pima County, Arizona; T. 15 S., R. 9 W., secs. 1 to
34; T. 15 S., R. 8 W., secs. 1 to 30; T. 15 S., R. 7 W., secs. 1 to 30;
T. 15 S., R. 6 W., secs. 1 to 30 and 33 to 36; T. 15 S., R. 5 W., secs.
1 to 36; T. 15 S., R. 4 W., secs. 4 to 9, 16 to 19, 30 to 31 and those
portions of 3, 10, 15, 20 to 22, 29, 32 west of the Tohono O'odham
Nation boundary; T. 16 S., R. 10 W., secs. 1 to 5, 8 to 14, those
portions of 15 to 18 north of Mexico, and those portions of secs. 6, 7
and 18 within Pima County, Arizona; T. 16 S., R. 9 W., secs. 3 to 8,
and sec. 18; T. 16 S., R. 6 W., secs. 1 to 4, 9 to 16, 21 to 28, and 33
to 36; T. 16 S., R. 5 W., secs. 1 to 36; T. 16 S., R. 4 W., secs. 6 to
7, 17 to 20, 29 to 33, and those portions of 5, 8 to 9, 16, 21, 26 to
28, 34, 35 west of Tohono O'odham Nation boundary; T. 17 S., R. 6 W.,
secs. 1 to 4, 9 to 16, 21 to 28, and 35, 36, those portions of secs. 33
and 34 north of Mexico.; T. 17 S., R. 5 W., secs. 1 to 36; T. 17 S., R.
4 W., secs. 4 to 9, 16 to 22, 25 to 36, and those portions of secs. 3,
10, 11, 14, 15, 23, 24 west of Tohono O'odham Nation; T. 18 S., R. 6
W., those portions of secs. 1 to 3 within Organ Pipe Cactus N.P. and
north of Mexico; T. 18 S., R. 5 W., secs, 1 to 5, 11, 12 and those
portions of 6 to 10, 13 to 15 within Organ Pipe Cactus N.P. and north
of Mexico; T. 18 S., R. 4 W., secs, 1 to 17, 23, 24 and those portions
of secs. 18 to 22, and 25 to 28 north of Mexico; T. 18 S., R. 3 W.,
secs. 6, 7, 18, 19, and 30, and the portions of sec. 31 north of
Mexico.

(ii) Note: Map of Unit 5 follows:

[[Page 71063]]

[GRAPHIC] [TIFF OMITTED] TP27NO02.005

[[Page 71064]]

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Dated: November 15, 2002.
Paul Hoffman,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-29617 Filed 11-26-02; 8:45 am]

BILLING CODE 4310-55-P