[Federal Register: July 7, 2005 (Volume 70, Number 129)]
[Proposed Rules]               
[Page 39227-39231]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT88

Endangered and Threatened Wildlife and Plants; Reopening of the 
Comment Period on Proposed Designation of Critical Habitat for the 
Southwestern Willow Flycatcher

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of public comment period.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the public comment period for the proposal to designate 
critical habitat for the southwestern willow flycatcher (Empidonax 
traillii extimus) to allow all interested parties to comment on the 
proposed critical habitat designation under the Endangered Species Act 
of 1973, as amended (Act) (16 U.S.C. 1531 et seq.); the draft economic 
analysis; draft environmental assessment; and the associated required 
determinations discussed below.
    Comments previously submitted on the October 12, 2004, proposed 
rule (69 FR 60705), and the December 13, 2004 (69 FR 72161), March 31, 
2005 (70 FR

[[Page 39228]]

16474), and April 28, 2005 (70 FR 21988), publications, need not be 
resubmitted as they have been incorporated into the public record and 
will be fully considered in preparation of the final rule.

DATES: We will consider all comments received from interested parties 
by July 18, 2005. Any comments received after the closing date may not 
be considered in the final determination on the proposal.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials by any one of several methods:
    1. You may submit written comments and information by mail or hand-
delivery to Steve Spangle, Field Supervisor, Arizona Ecological 
Services Field Office, 2321 W. Royal Palm Road, Suite 103, Phoenix, 
Arizona 85021.
    2. Written comments may be sent by facsimile to (602) 242-2513.
    3. You may send your comments by electronic mail (e-mail) to 

    You may obtain copies of the critical habitat proposal and 
supporting maps, draft economic analysis, and draft environmental 
assessment by mail by contacting the person listed under FOR FURTHER 
INFORMATION CONTACT, or by visiting our Web site at http://arizonaes.fws.gov/SWWF_PCH_Oct.htm.
 You may review comments and 

materials received, and review supporting documentation used in 
preparation of this proposed rule by appointment, during normal 
business hours, at the above address.

FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, 
Arizona Ecological Services Office (telephone 602-242-0210, facsimile 



    We proposed to designate for the southwestern willow flycatcher 
approximately 376,095 acres (ac) (152,124 hectares (ha)) [including 
approximately 1,556 stream miles (2,508 stream kilometers)] of critical 
habitat, which includes various stream segments and their associated 
riparian areas, not exceeding the 100-year floodplain or flood-prone 
area, on a combination of Federal, State, tribal, and private lands in 
southern California, southern Nevada, southwestern Utah, south-central 
Colorado, Arizona, and New Mexico. The proposed rule was published in 
the Federal Register (69 FR 60705) on October 12, 2004, pursuant to a 
court order.
    On September 30, 2003, in response to a complaint brought by the 
Center for Biological Diversity, the U.S. District Court of New Mexico 
instructed us to propose critical habitat by September 30, 2004, and 
publish a final rule by September 30, 2005. Additional background 
information is available in the October 12, 2004, proposal to designate 
critical habitat.
    Critical habitat identifies specific areas that are essential to 
the conservation of a listed species and that may require special 
management considerations or protection. If the proposed rule is made 
final, section 7 of the Act will prohibit adverse modification of 
critical habitat by any activity funded, authorized, or carried out by 
any Federal agency. Federal agencies proposing actions affecting areas 
designated as critical habitat must consult with us on the effects of 
their proposed actions, pursuant to section 7(a)(2) of the Act.
    Section 4 of the Act requires that we consider economic and other 
relevant impacts prior to making a final decision on what areas to 
designate as critical habitat. We may revise the proposal, or its 
supporting documents, to incorporate or address new information 
received during the comment period. In particular, we may exclude an 
area from critical habitat if we determine that the benefits of 
excluding the area outweigh the benefits of including the area as 
critical habitat, provided such exclusion will not result in the 
extinction of the species. During the comment period we anticipate 
receiving Tribal conservation plans and conservation plans from local 
government entities with authority over areas covered under the 
proposed designation. We note that areas covered under such plans, 
received during the comment period, will be considered for exclusion in 
the final rule pursuant to section 4(b)(2) of the Act. Additionally, as 
noted in our proposal, we will consider excluding, pursuant to section 
4(b)(2) of the Act, (1) legally operative Habitat Conservation Plans 
(HCPs) that cover the species and provide assurances that the 
conservation measures for the species will be implemented and 
effective, as well as draft HCPs that cover the species, have undergone 
public review and comment, and provide assurances that the conservation 
measures for the species will be implemented and effective (i.e., 
pending HCPs), (2) National Wildlife Refuges with Comprehensive 
Conservation Plans (CCPs) or conservation programs that provide 
assurances that the conservation measures for the species will be 
implemented and effective, (3) water systems that provide flood control 
or water supply benefits, and (4) tribal lands.
    Pursuant to 50 CFR 424.16(c)(2), we may extend or reopen a comment 
period upon finding that there is good cause to do so. In our proposed 
rule, we withheld our determination of whether this designation would 
be in compliance with certain Executive orders and statutes until we 
completed our draft economic analysis of the proposed designation so 
that we would have the factual basis for our determination. This notice 
serves to provide the factual basis for this determination, as outlined 
below. We deem this consideration as sufficient cause to reopen the 
comment period.
    We are required by court order to complete the final designation of 
critical habitat for the southwestern willow flycatcher by September 
30, 2005. To meet this date, all comments on or proposed revisions to 
the proposed rule need to be submitted to us by July 18, 2005 (see 
    Our practice is to make comments, 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, which we will honor to the extent allowable by law. 
If you wish us to withhold your name or address, you must state this 
request prominently at the beginning of your comments. However, we will 
not consider anonymous comments. To the extent consistent with 
applicable law, we will make all submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives or officials of organizations or businesses, available 
for public inspection in their entirety.

Required Determinations--Amended

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule because it may raise novel legal and policy issues. 
However, based on our draft economic analysis, it is not anticipated 
that the proposed designation of critical habitat for the southwestern 
willow flycatcher will result in an annual effect on the economy of 
$100 million or more or affect the economy in a material way. Due to 
the timeline for publication in the Federal Register, the Office of 
Management and Budget (OMB) has not formally reviewed the proposed rule 
or accompanying economic analysis.
    Further, Executive Order 12866 directs Federal Agencies 
promulgating regulations to evaluate regulatory alternatives (Office of 
Management and

[[Page 39229]]

Budget, Circular A-4, September 17, 2003). Pursuant to Circular A-4, 
once it has been determined that the Federal regulatory action is 
appropriate, then the agency will need to consider alternative 
regulatory approaches. Since the determination of critical habitat is a 
statutory requirement pursuant to the Endangered Species Act of 1973, 
as amended (Act) (16 U.S.C. 1531 et seq.), we must then evaluate 
alternative regulatory approaches, where feasible, when promulgating a 
designation of critical habitat.
    In developing our designations of critical habitat, we consider 
economic impacts, impacts to national security, and other relevant 
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion 
allowable under this provision, we may exclude any particular area from 
the designation of critical habitat providing that the benefits of such 
exclusion outweighs the benefits of specifying the area as critical 
habitat and that such exclusion would not result in the extinction of 
the species. As such, we believe that the evaluation of the inclusion 
or exclusion of particular areas, or combination thereof, in a 
designation constitutes our regulatory alternative analysis.

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the SBREFA), whenever an agency is required to publish a 
notice of rulemaking for any proposed or final rule, it must prepare 
and make available for public comment a regulatory flexibility analysis 
that describes the 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 the rule will not have a significant economic 
impact on a substantial number of small entities. As noted above, in 
our proposed rule we withheld our determination of whether this 
designation would result in a significant effect as defined under 
SBREFA until we completed our draft economic analysis of the proposed 
designation so that we would have the factual basis for our 
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as small businesses (13 CFR 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term significant economic impact is meant to apply to a 
typical small business firm's business operations.
    To determine if this proposed designation of critical habitat for 
the southwestern willow flycatcher would affect a substantial number of 
small entities, we considered the number of small entities affected 
within particular types of economic activities (e.g., water management 
and supply, livestock grazing, land development, recreation). We 
considered each industry or category individually to determine if 
certification is appropriate. In estimating the numbers of small 
entities potentially affected, we also considered whether their 
activities have any Federal involvement; some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
the designation of critical habitat. Designation of critical habitat 
only affects activities conducted, funded, permitted or authorized by 
Federal agencies; non-Federal activities are not affected by the 
    If this proposed critical habitat designation is made final, 
Federal agencies must consult with us if their activities may affect 
designated critical habitat. Consultations to avoid the destruction or 
adverse modification of critical habitat would be incorporated into the 
existing consultation process.
    In our economic analysis of this proposed designation we evaluated 
the potential economic effects on small business entities and small 
governments resulting from conservation actions related to the listing 
of this species and proposed designation of its critical habitat. We 
evaluated small business entities in four categories: Water management 
and supply activities, livestock grazing, land development, and 
recreation. The following summary of the information contained in 
Appendix A of the draft economic analysis provides the basis for our 
Water Management and Water Supply Activities
    Under one scenario analyzed in the draft economic analysis, water 
operators are assumed to be required to change their management regimes 
to avoid adverse affects to southwestern willow flycatcher habitat, 
resulting in a loss of water for beneficial use (i.e. reservoir pools 
will be limited to current levels in order to avoid inundation of 
southwestern willow flycatcher habitat). Facilities assessed under this 
scenario include Lake Hodges, Cuyamaca Reservoir, Vail Dam, Pleasant 
Valley Reservoir, Isabella Dam, Hoover Dam, Parker Dam, Alamo Dam, 
Roosevelt Dam, and Horseshoe Dam. Under this scenario, it is expected 
that this economic cost will result in higher water prices to 
commercial and residential users; however, we find that no small 
businesses are directly impacted under this scenario.
    Some water users may be more directly affected by changes in water 
supply that could occur as a result of southwestern willow flycatcher 
conservation activities, specifically, agricultural users dependent on 
the drought reserves provided by these systems. Appendix A of the draft 
economic analysis provides a profile of the agricultural users that are 
at greatest risk from direct losses in water supply under this 
scenario. The four water systems that provide water to agricultural 
users include Lake Isabella (including the North Kern Water Storage 
District, the Buena Vista Storage District, and the City of Bakersfield 
Water Resources Department); Roosevelt and Horseshoe (the Salt River 
Project operates six reservoirs and dams on the Salt and Verde Rivers); 
Coolidge Dam (San Carlos Irrigation Project); and Lower Colorado River 
(water from the Colorado River is diverted to six States and is used 
for every purpose, including agricultural uses).
Livestock Grazing Activities
    Impacts to livestock grazing include an estimated reduction in the 
level of grazing effort within the proposed designation of 89,300 AUM 
(animal unit months), of which 1,300 are federally permitted, and 
88,000 are on private lands. The AUM reduction could represent 
approximately 1 percent of AUMs for each of 105 affected ranchers 
holding Federal grazing permits in the proposed designation 
cumulatively over 20 years. On non-Federal lands, impacts on grazing 
efforts are more uncertain, since maps describing the overlap of 
privately grazed lands and the designation are not available. However,

[[Page 39230]]

if each ranch affected is small, then 0 to 110 ranches cumulatively 
over 20 years could experience a total reduction in private lands 
grazing effort. We believe that this would represent approximately 0.3 
percent of beef cow operations in affected States. However, we will 
continue to evaluate the potential economic impacts by determining the 
number of AUMs per region and the number of ranches per the region to 
determine if our assessment is accurate.
Land Development Activities
    Impacts to development activities within the proposed designation 
include land value loss, other project modifications, California 
Environmental Quality Act costs, and project delay costs in the Mojave 
and Santa Ana Management Units in California. It was determined in the 
draft economic analysis that less than 1 percent of land developers 
will be affected, and 0.02 percent of annual revenues of small land 
developers in this area may be lost.
Recreation Activities
    Impacts to recreation activities include limitations on vehicle 
use, fires, and cigarette smoking in two areas near Roosevelt Lake on 
the Tonto National Forest, and fewer trips to the area for hunting and 
fishing for a total annual impact of approximately 0.25 percent of 
annual small business revenues in Gila County.
    Based on this data we have determined that this proposed 
designation would not affect a substantial number of small businesses 
involved in or affected by water management and supply activities, 
livestock grazing, land development, and recreation. Further, we have 
determined that this proposed designation would also not result in a 
significant effect to the annual sales of those small businesses 
impacted by this proposed designation. As such, we are certifying that 
this proposed designation of critical habitat would not result in a 
significant economic impact on a substantial number of small entities. 
Please refer to Appendix A of our draft economic analysis of this 
designation for a more detailed discussion of potential economic 
impacts to small business entities.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order (E.O.) 13211 
on regulations that significantly affect energy supply, distribution, 
and use. E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. This proposed rule is 
considered a significant regulatory action under E.O. 12866 due to it 
potentially raising novel legal and policy issues, but it is not 
expected to significantly affect energy supplies, distribution, or use. 
Appendix B of the draft economic analysis provides a detailed 
discussion and analysis of this determination. Specifically, two 
criteria were determined to be relevant to this analysis: (1) 
reductions in electricity production in excess of 1 billion kilowatt-
hours per year or in excess of 500 megawatts of installed capacity, and 
(2) increases in the cost of energy production in excess of 1 percent. 
The draft analysis finds that no net reduction in electricity 
production is anticipated, and thus we do not anticipate that the 
suggested OMB threshold of 1 billion kilowatt hours will be exceeded. 
In addition, total financial impacts related to southwestern willow 
flycatcher conservation activities ($2.7 million annually) represent 
0.02 percent of the estimated annual baseline cost of regional energy 
production, and this is well below the 1 percent threshold suggested by 
OMB. Therefore, this action is not a significant 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), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments,'' with 
two exceptions. It excludes ``a condition of federal assistance.'' It 
also excludes ``a duty arising from participation in a voluntary 
Federal program,'' unless the regulation ``relates to a then-existing 
Federal program under which $500,000,000 or more is provided annually 
to State, local, and tribal governments under entitlement authority,'' 
if the provision would ``increase the stringency of conditions of 
assistance'' or ``place caps upon, or otherwise decrease, the Federal 
Government's responsibility to provide funding'' and the State, local, 
or tribal governments ``lack authority'' to adjust accordingly. (At the 
time of enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement.) ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance; or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. Non-Federal entities that receive Federal 
funding, assistance, permits, or otherwise require approval or 
authorization from a Federal agency for an action, may be indirectly 
impacted by the designation of critical habitat. However, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply; nor would 
critical habitat shift the costs of the large entitlement programs 
listed above on to State governments.
    (b) The economic analysis discusses potential impacts of critical 
habitat designation for the southwestern willow flycatcher on water 
management activities, administrative costs, livestock grazing, 
residential and commercial development activities, Tribes, 
transportation activities, recreation activities, and fire management 
activities. The analysis estimates that annual costs of the rule could 
range from $29.2 to $39.5 million annually using the most likely costs 
scenario. Impacts are largely anticipated to affect water operators and 
Federal and State agencies, with some effects on livestock grazing 
operations, land development activities, and recreation activities. 
Impacts on small governments are not anticipated, or they are 
anticipated to be passed through to consumers. For example, costs to 
water operations would be expected to be passed on to consumers in the 
form of price changes. Consequently, for the reasons discussed above, 
we do not believe that the designation of critical habitat for the 
southwestern willow flycatcher will

[[Page 39231]]

significantly or uniquely affect small government entities. As such, a 
Small Government Agency Plan is not required.


    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
proposing critical habitat for the southwestern willow flycatcher in a 
takings implications assessment. The takings implications assessment 
concludes that this proposed designation of critical habitat for the 
southwestern willow flycatcher does not pose significant takings 


    The authority for this action is the Endangered Species Act of 1973 
(16 U.S.C. 1531 et seq.).

    Dated: June 30, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-13402 Filed 7-6-05; 8:45 am]